Reform of the Human Rights Act 1998 (AQA A-Level Law): Revision Notes
Reform of the Human Rights Act 1998
Introduction
Reform refers to the process of updating, changing, or repealing (removing) existing law. Reform may be necessary for various reasons, such as when society's values change or when legislation no longer serves its intended purpose effectively.
The Human Rights Act 1998 (HRA 1998) was a landmark piece of legislation that was long overdue for many citizens. It was introduced with the aim of 'bringing rights home', meaning it made the provisions of the European Convention on Human Rights (ECHR) directly enforceable in UK courts for the first time. Previously, individuals had to take cases to the European Court of Human Rights in Strasbourg to enforce their Convention rights.
The Act received cross-party support in Parliament when it was passed and remains a non-political instrument supporting mutual respect and consideration of others. The historical context is important: the horrors of the Second World War led to the creation of the ECHR as a means to prevent such atrocities from occurring again.
Human rights and freedoms form the foundation of any democratic society. As all UK legislation must be compatible with the HRA 1998, it provides both rules and considerations for policymakers and safeguards for citizens. However, despite this support, the Act has faced substantial criticism and calls for reform.
Exam guidance: When analysing a particular Article of the ECHR in an exam question, remember to include criticism or support for that Article, including any relevant reform proposals. This demonstrates evaluative skills.
Is there a real need for reform?
Despite broad support for the Act, laws and rights must evolve with a changing society. While the fundamental principles of rights and freedoms remain constant, the laws supporting these principles must adapt to contemporary needs and values.
Criticism of the Human Rights Act 1998
There are three main criticisms of the HRA 1998:
1. Perceived as 'un-British'
Critics argue that the Act is not 'British' because it introduces 'foreign' rules which have undermined parliamentary sovereignty. Parliamentary sovereignty is a fundamental constitutional principle meaning Parliament should be the supreme legal authority in the UK. Critics claim the HRA 1998 has eroded this by allowing European human rights law to influence UK law.
2. Enforcement of 'foreign' rules
Through its application and interpretation by UK courts, the Act is seen as enforcing 'foreign' rules. Courts must 'take into account' judgments of the European Court of Human Rights (ECtHR), which some view as allowing foreign judges to influence British law.
3. Public misunderstanding and media misrepresentation
The Act is generally misunderstood by the public and misrepresented in the media. Sensationalist reporting has created a distorted view of how the Act operates, often focusing on controversial cases without explaining the legal principles involved.
Exam tip: There are many criticisms and proposals for reform of the HRA 1998. You cannot know them all, so focus on understanding the common proposals and being able to develop sensible arguments yourself.
Timeline of reform proposals (2006-2020)
2006: Department for Constitutional Affairs review
The Department for Constitutional Affairs conducted a review of the implementation of the Human Rights Act. The review concluded that the HRA 1998 had been widely misunderstood by the public and had been misused in several situations. This was one of the first official acknowledgments that the Act needed examination.
2006: Conservative Party proposal
David Cameron, then leader of the Opposition, proposed that the Conservatives would introduce a British Bill of Rights and Responsibilities to 'define the core values which give us our identity as a free nation'. This proposal included a commitment to repeal the HRA 1998 entirely.
2007: Labour Government Green Paper
The Labour Government published a Green Paper titled 'The Governance of Britain', which included a proposal for a British Bill of Rights and Duties. This proposal provided explicit recognition that 'human rights come with responsibilities and must be exercised in a way that respects the human rights of others'. This reflected a growing political sentiment that rights should be balanced with responsibilities.
2008: Joint Committee on Human Rights
The Joint Committee on Human Rights published a report emphasising the need for proper public consultation before any reform plans were drawn up. This highlighted concerns that major constitutional changes were being proposed without adequate democratic input.
2009: Labour Government report
The Labour Government published a report titled 'Rights and Responsibilities: developing our constitutional framework'. Labour acknowledged that the HRA 1998 had been an important step towards incorporating rights and freedoms, but argued that incorporating UK values alongside Convention rights would provide a stronger guarantee of rights and freedoms.
2010: General Election manifestos
The three main parties took different positions on the HRA 1998:
- The Conservatives promised to replace the HRA 1998 with a Bill of Rights
- Labour and the Liberal Democrats were committed to protecting the Act
2011: Commission on a Bill of Rights
A Commission on a Bill of Rights was established to investigate the creation of a Bill of Rights for the UK. This was intended to provide an independent examination of the issue.
2012: Commission report
The Commission established in 2011 published its report: 'A UK Bill of Rights? The Choice Before Us'.
Significantly, the Commissioners could not agree on a common position, so each Commissioner published their own findings under one report. This demonstrated the deep divisions on this issue even among legal and constitutional experts.
2013: Conservative Party Conference
At the 2013 Conservative Party Conference, Home Secretary Theresa May stated: 'The next Conservative manifesto will promise to scrap the Human Rights Act ... the Conservative position is clear – if leaving the European Convention is what it takes to fix our human rights law, that is what we should do.' This marked a hardening of the Conservative position, suggesting withdrawal from the ECHR itself might be necessary.
2015: Conservative Party General Election Manifesto
Following the 2015 General Election, the Conservative Party (in coalition government) included a promise in their manifesto to scrap the HRA 1998 and replace it with a Bill of Rights.
2017: Conservative Party General Election Manifesto
By 2017, the political context had changed significantly due to Brexit. The Conservative Party manifesto (government in office) stated that while Brexit was in process, the HRA 1998 would not be replaced and the UK would remain signatories of the ECHR for the duration of that Parliament. This represented a significant shift in policy, with reform proposals being shelved.
2020: Independent review
Following the election of the Conservative Government in 2019, and as part of its manifesto commitment, an independent review of the Human Rights Act 1998 was launched. This review aims to take a 'fresh look at the Act' to 'ensure it continues to meet the needs of the society it serves'. The details of this review are discussed below.
The proposed Bill of Rights
The UK Bill of Rights was essentially a Conservative Party election promise from 2010 onwards, though the idea also appeared in Labour proposals in different forms. Key features of the proposed Bill included:
Purpose and scope
- It would be a legal document designed to replace the Human Rights Act 1998, serving as a solution to the criticisms outlined above
- If passed into law, it could be changed by a UK government without being challenged by any EU country (reflecting concerns about sovereignty)
Lack of detail
- The contents of the proposed Bill were largely unknown, unwritten, and certainly not ratified by public consultation
- This lack of specificity made it difficult to assess whether the Bill would provide better or worse protection than the existing HRA 1998
Relationship with the ECHR
- Decisions of the ECtHR (European Court of Human Rights) would not be directly applicable or enforceable upon the UK
- This raised concerns that the UK would be in breach of its international obligations under the ECHR
Political fate
Proposals for a UK Bill of Rights were scrapped before the 2017 General Election. This decision was influenced by the political focus on Brexit and concerns about the complexity of constitutional reform during this period.
Evaluation point: Consider the statement: 'Human rights in the UK are simply a fantasy and not a reality.' Using a specific Article of the HRA 1998, you could evaluate whether the Act provides real protection or merely theoretical rights. For example, Article 5 (right to liberty) might be examined in the context of counter-terrorism legislation, or Article 8 (right to privacy) in relation to surveillance powers.
The 2020 independent review of the Human Rights Act 1998
While the Government has stated that the UK remains committed to the ECHR, it launched an independent review following the 2019 election.
Importantly, this review is limited to looking at the structural framework of the Human Rights Act rather than limiting or expanding the rights and freedoms themselves. This means the review focuses on how the Act operates, not on which rights should be protected.
Terms of reference
The review will consider three main areas:
1. Relationship between domestic courts and the ECtHR
The review will examine:
- How the duty to 'take into account' ECtHR case law has been applied in practice. Under section 2 HRA 1998, UK courts must 'take into account' judgments of the ECtHR, but this does not mean they must always follow them
- Whether dialogue between the domestic courts and the ECtHR works effectively. This refers to the way UK courts can engage with Strasbourg jurisprudence while developing their own interpretation of Convention rights
- Whether there is any room for improvement in this relationship
2. Impact on constitutional relationships
The review will assess the impact of the HRA 1998 on the relationship between the judiciary, executive, and Parliament. This relates to the constitutional principle of separation of powers. Critics argue that the Act has shifted too much power to judges, allowing them to make decisions that should be made by elected politicians.
3. Judicial involvement in policy
The review will consider whether domestic courts are being unduly drawn into areas of policy. This concern reflects criticism that judges, through human rights cases, are making decisions about matters such as immigration, criminal justice, and national security that should be decided by the government and Parliament.
Significance
This review represents a more moderate approach than previous proposals to scrap the HRA 1998 entirely. By focusing on the structural framework rather than the rights themselves, the Government has acknowledged that the principles of human rights protection remain important, even if the mechanisms for protecting them may need adjustment.
Exam preparation
Assessment: This content may be assessed across different papers of the A-Level Law exam, particularly where questions require analysis and evaluation of human rights protection in the UK.
In the exam, you may be asked to:
- Answer multiple-choice questions about reform of human rights for UK citizens
- Explain, in broad terms, reform of human rights in relation to each Article of the Convention and of the Human Rights Act 1998
- Write an analysis of the reform of human rights in relation to each Article of the Convention and of the Human Rights Act 1998
Exam technique:
- When analysing reform, always link your discussion to specific Articles of the Convention where possible
- Use contemporary examples of reform proposals to demonstrate current knowledge
- Balance arguments for and against reform
- Consider both principled arguments (about rights protection) and practical arguments (about how the Act operates)
- Remember that reform is an ongoing political issue, so awareness of recent developments is valuable
Remember!
Key Points to Remember:
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Reform means updating, changing, or repealing existing law. The Human Rights Act 1998 has faced continuous calls for reform since its enactment.
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The three main criticisms of the HRA 1998 are: it is perceived as 'un-British' and undermines parliamentary sovereignty; it enforces 'foreign' rules through ECtHR judgments; and it is widely misunderstood by the public and misrepresented in the media.
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Reform proposals have come from multiple sources between 2006 and 2020, including both Labour and Conservative governments. The proposed Bill of Rights was a key Conservative policy but was shelved before the 2017 election due to Brexit.
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The 2020 independent review takes a more moderate approach, focusing on the structural framework of the Act rather than the rights themselves. It examines the relationship between UK courts and the ECtHR, the impact on separation of powers, and whether judges are being drawn too far into policy matters.
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The debate over reform reflects fundamental questions about sovereignty, the role of judges, and the balance between rights and responsibilities in a democratic society.