FAQs on the Government’s Consultation About Reforming the Human Rights Act

25th February 2022

The Government is currently holding a consultation on proposals to reform the Human Rights Act 1998. This is an incredible opportunity to push for the maintenance and strengthening of the right to freedom of expression within the UK – and if you’d like to help we’ve created these FAQs suggesting how you might respond.

Background 

We are concerned that the UK’s domestic courts have strayed from the original purpose of the European Convention on Human Rights (“the Convention”), an international initiative wholly separate from the European Union, spearheaded by Winston Churchill as a way of safeguarding liberty in Europe in the wake of World War II.  

“The right to guide the course of world history is the noblest prize of victory.”

Winston Churchill

In the process of the Convention’s creation, freedom of expression (Article 10) was heralded as “the touchstone of all freedoms”. Yet when the Human Rights Act (“the HRA”) was passed – which gave effect to the ECHR in the UK’s domestic law – this was forgotten. Indeed, our domestic courts have allowed this primary right to become more and more neglected. This is particularly so in relation to the balance between the right to privacy (Article 8) and the right to freedom of expression.   

We believe this reflects a broader neglect of the right to freedom of expression within British society, as evidenced by the FSU’s mountainous work load, particularly in universities.  

The Government is proposing to create a “Modern Bill of Rights”, something we welcome as an opportunity to re-establish the importance of freedom of expression, as originally embedded in the Convention, within UK law.

How you can help 

Anyone can respond to this consultation, whether you have a legal background or not, and we would encourage you to respond to those questions that relate to the maintenance and strengthening of free speech (1, 4, 5, 6, 7, 8, 9, 12, 20, 23).  You don’t have to answer all questions. 

Question 1: We believe that the domestic courts should be able to draw on a wide range of law when reaching decisions on human rights issues. We would welcome your thoughts on the illustrative draft clauses found after paragraph 4 of Appendix 2, as a means of achieving this.

  • In principle we agree. However, to preserve legal certainty and continuity it is imperative that UK courts consider the jurisprudence of the European Convention on Human Rights (“the Convention”) as a ‘floor of rights’, at least with regard to Article 10 case law (see our response to Q5).
  • The UK Supreme Court must ensure that the same level of protection currently afforded to freedom of expression via Convention case law is strengthened, or, at the very least, maintained.

Question 4: How could the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers through injunctions or other relief?

(Section 12 of the Human Rights Act attempts to guide the courts in the exercise of balancing the right to privacy (Article 8) and the right to freedom of expression (Article 10) with regards to expression that is or will be in the public domain.)

  • We believe it is important to amend section 12 so that interference with the press and other publishers through injunctions and other court orders is limited. A key concern we have is that the domestic courts have sought to extend media privacy law in the UK at the expense of freedom of expression, going beyond what is required by the European Court of Human Rights (“ECtHR”). This is best demonstrated by the decision of the UK Supreme Court earlier this month (February 2022) in Bloomberg LP v ZXC, which ruled that the news organisation was not allowed to reveal that a businessman was under investigation for corruption since that would be a breach of his right to privacy.
  • If privacy rights are going to be extended beyond that provided for by the ECtHR, this should be a matter for Parliament, not the courts. To remedy this, we recommend making the following amendments to section 12:

1)  That the courts’ obligation, as specified in section 12,  to “have particular regard” to Article 10 be changed to an obligation to give “particular weight”. (While this may sound like a pedantic change, this wording will highlight to judges that the right to freedom of expression should not merely be considered alongside other rights but rather given special weight.)

2) That the amended version of section 12 specify that “public interest” be defined widely. (Whether a particular piece of information is allowed to be published often comes down to whether or not it is in the “public interest”. In the case of Bloomberg LP v ZXC, for example, the Supreme Court found that publishing the fact that a businessman was under investigation was not in the public interest (thereby appealing to a very narrow definition of “public interest”). Yet, we would argue that, for those wishing to enter into dealings with this businessman, this is a critical piece of information. Hence, we recommend that a wide definition of “public interest” be adopted. Indeed, it is essential that “public interest” be defined widely in a democracy – freedom of expression is the foundation of all other democratic rights.

Question 5: The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations above. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?

  • The ECtHR’s jurisprudence on Article 10 robustly upholds its importance and quite properly confines interference to limited and exceptional circumstances – and that principle should be underlined in guidance to the UK’s domestic courts.
  • Indeed, the ECtHR has affirmed that the speech Article 10 protects includes speech that “offends, shocks or disturbs” and that freedom of expression is the “essential foundation of a democratic society” (Handyside v UK, App no. 5493/72). Importantly, the ECtHR has said that any “formality, condition, restriction or penalty” attached to free speech should be seen as an interference with an individual’s Article 10 right (Wille v Liechtenstein, App no. 33629/06)
  • Specifically, the EctHR hashighlighted the importance of political speech, clarifying that even if an expression can be found, objectively, to be highly offensive it is unlikely to be considered ‘hate speech’ if it’s expressed within the context of a public debate where different points of view are being exchanged and are open to challenge (Vajnai v Hungary, App. no. 33629/06). It has also recently debunked the myth that a person’s privacy automatically trumps another person’s right to free expression, highlighting that this is a misconception – especially if the person is a journalist (Pal v UK, App no. 44261/19).
  • Therefore, we recommend the Strasbourg jurisprudence on Article 10 should be maintained as binding in guidance to the UK’s domestic courts, a ‘floor’ on which they can build but not fall below.

 Question 6: What further steps could be taken in the Bill of Rights to provide stronger protection for journalists’ sources?

  • Legal protections for journalists’ sources is “one of the basic conditions for press freedom” (Goodwin v UK, App No 17488/90) and, as such, the strongest possible protection for journalists’ sources should be enshrined in the Bill of Rights.

Question 7: Are there any other steps that the Bill of Rights could take to strengthen the protection for freedom of expression?

1) The Bill of Rights should explicitly state that the right to freedom of expression be applied with horizontal effect, e.g. private companies should be legally obliged to uphold and protect individuals’ right to freedom of expression under Article 10, particularly private employers and social media platforms. There is particular urgency with regard to the latter. This extension is justifiable in the same way that certain entities amass obligations within competition law: because they have accumulated so much power. This power has given rise to very substantial concerns which has led to the proposal from the Government to enact the Online Safety Bill. However, the Bill is likely to be harmful to freedom of expression. It is true that it contains provisions designed to safeguard free speech – the protection of “content of democratic importance” and “journalistic content”, for instance. However these are, noticeably, the weakest legal duties in the Bill, constituting an obligation merely to have “regard” to these matters, offering no substantive protection at all. Social media platforms like Twitter and Facebook have become our public square and, as such, equally strong reasons should be given to justify the penalisation of free expression in these spaces as would have to be given be in a live, non-virtual,  public square. In principle, from the perspective of Convention law, there is no reason why the principle of horizontal effect cannot be imposed by the domestic courts to prevent arbitrary interference with individuals’ speech rights by private social media platforms.

2) The Bill of Rights should assert the paramountcy of freedom of expression in general and explicitly over the right to privacy on the grounds that it is “the touchstone of all freedoms”.

3) The Bill of Rights should tackle the growth of subjective, perception-based definitions of ‘hate speech’ and the like by requiring that any prohibited speech considered by the courts be interpreted objectively (as in defamation cases).

Question 8: Do you consider that a condition that individuals must have suffered a ‘significant disadvantage’ to bring a claim under the Bill of Rights, as part of a permission stage for such claims, would be an effective way of making sure that courts focus on genuine human rights matters? Please provide reasons.

  • No, such a condition would not be an effective way of ensuring that courts focus on genuine human rights matters. The concept of ‘significant disadvantage’ is a malleable principle which is open to abuse. Courts must be able to restrain wrongdoing even in the absence of significant damage. However, we think an individual’s level of disadvantage should be taken into account when it comes to assessing damages in section 7 claims.

Question 9: Should the permission stage include an ‘overriding public importance’ second limb for exceptional cases that fail to meet the ‘significant disadvantage’ threshold, but where there is a highly compelling reason for the case to be heard nonetheless? Please provide reasons.

  • See our response to Q8.
  • If a ‘significant disadvantage’ condition is implemented, we would prefer there not to be a second limb for ‘exceptional cases’ but rather a lower-level alternative which is defined widely such as ‘public interest’. This is because, as explained above, courts must be able to restrain wrongdoing even in the absence of significant damage and a test of ‘overriding public importance’ may indiscriminately weed out those who should be entitled to justice.

Question 11: How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities from being impacted by costly human rights litigation? Please provide reasons. (A positive obligation on public authorities refers to their obligation to take positive steps to safeguard Convention rights. This is different from their negative obligation not to perpetrate breaches of the Convention.)

  • It is our contention that, in practice, the distinction between positive and negative rights is largely artificial. Indeed, Lord Brown has dubbed this distinction a “false dichotomy”(R Limbuela v SSHD [2005] UKHL 66, para.92). Therefore, “addressing the imposition and expansion of positive obligations” runs the risk of arbitrarily limiting courts’ ability to fulfil their mandate and play their rightful role within a democracy which adheres to the principle of the separation of powers. It is worth noting that this principle does not inherently clash with the cornerstone of our constitution – parliamentary sovereignty – but rather plays a critical role in maintaining the equilibrium of power. Parliament may, at any point, decide to override judicial points of law by way of enacting legislation.
  • Beyond the risk of arbitrarily limiting the courts’ ability to fulfil their mandate within a democracy, we are worried that an attempt to limit what is seen as the “imposition and expansion of positive obligations” will hamper the widening/strengthening of Article 10 (by way of horizontal application, see our response to Q7).
  • We understand that the Government is concerned about what is seen as unwarranted judicial activism. We share this concern, particularly with regard to Article 8. However, this should be tackled in a different way. For example, by ensuring the Bill of Rights asserts the paramountcy of freedom of expression, particularly over and above Article 8, and that the Bill of Rights provides that the development of domestic privacy law remains in tandem with Convention jurisprudence, so that the Government fulfils its international obligations, but that it goes no further. As mentioned in Q4, a key concern we have is the domestic courts’ impulse to go above and beyond what is necessitated by the Convention (a recent example being Bloomberg LP v ZXC).
  • If the Government does feel the need to address positive obligations we recommend enshrining in statute the current Convention principles which provide the courts with a framework for when it might be sensible to impose a positive duty on public authorities.

Question 12: We would welcome your views on the options for section 3. Option 1: Repeal section 3 and do not replace it. Option 2: Repeal section 3 and replace it with a provision that where there is ambiguity, legislation should be construed compatibly with the rights in the Bill of Rights, but only where such interpretation can be done in a manner that is consistent with the wording and overriding purpose of the legislation. We would welcome comments on the above options, and the illustrative clauses in Appendix 2. (Section 3 of the HRA requires that primary and subordinate legislation be read and given effect – so far as is possible to do so – in a manner which is compatible with Convention rights.)

  • We are concerned that both options will have a negative impact on free speech where Parliament has not actively legislated to protect the right to freedom of expression. Over the past two decades draftsmen and ministers have refrained from expressly drafting statutory protection for the right to freedom of expression because of their reliance on section 3 to do the job of protecting UK citizens’ right to freedom of expression. The removal of section 3 will thus, inevitably, roll back and fetter individuals’ right to freedom of expression.
  • An example of the dynamic protection offered by section 3 when applied to Article 10 cases is the Lee v Ashers Baking Company [2018] UKSC 49 case (“the gay cake case”) where the UK Supreme Court interpreted anti-discrimination legislation in Northern Ireland as compatible with the right to freedom of expression (by virtue of section 3) and, in this way, not only protected but expanded the right to freedom of expression so that it includes the right not to express a particular point of view.
  • Therefore, section 3 should be retained for the right to freedom of expression. In addition, section 3, as it applies to freedom of expression, should be enshrined as a normative rule of interpretation – i.e., it should apply in all instances to protect freedom of expression as a supreme value, not only in cases where judges necessitate extra guidance to make sense of ambiguous legislation.

Question 20: Should the existing definition of public authorities be maintained, or can more certainty be provided as to which bodies or functions are covered? Please provide reasons.

  • The government should consider expanding horizontal application of the Bill of Rights in relation to Article 10 to include employers and social media platforms. This can be achieved either by the Bill of Rights or via separate legislation (See Q7).

Question 23: To what extent has the application of the principle of ‘proportionality’ given rise to problems, in practice, under the Human Rights Act? We wish to provide more guidance to the courts on how to balance qualified and limited rights. Which of the below options do you believe is the best way to achieve this? Please provide reasons.

 Option 1: Clarify that when the courts are deciding whether an interference with a qualified right is ‘necessary’ in a ‘democratic society’, legislation enacted by Parliament should be given great weight, in determining what is deemed to be ‘necessary’.

Option 2: Require the courts to give great weight to the expressed view of Parliament, when assessing the public interest, for the purposes of determining the compatibility of legislation, or actions by public authorities in discharging their statutory or other duties, with any right.

We have no issue with either option.