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LLG and Law Society express concern at Government plan to replace Human Rights Act with Bill of Rights

Lawyers in Local Government (LLG) has said in its response to a Government consultation on replacing the Human Rights Act 1998 with a Bill of Rights that it opposes proposals that “seek to reduce the accountability of public authorities or undermine the rule of law”.

LLG said the 1998 Act “plays a key and critically important role in the fundamental protection of human rights. The Independent Human Rights Act Review itself found no good case for making significant changes to the Human Rights Act 1998.”

Among LLG’s objections to Government proposals was the issue of a permission stage in human rights cases.

Its response said: “The effect of requiring what appears to be a permission stage would be to create a further step process into the proceedings whilst shifting the burden onto the claimant.

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“LLG would question the number of human rights cases being brought before the courts that the government appear to be basing the requirement for permission on. In social housing cases for example, notably on repossession, where human rights is raised alongside the defence, the matter is already routinely dealt with by way of initial hearing to determine whether in fact it engages.”

LLG added: “In cases which involve an extreme human rights intervention, deprivation of liberty for example, a permission stage would vastly delay an outcome for the claimant.”

LLG also disputed the implication that numerous cases are brought to the courts that do not involve genuine human rights abuses.

“It would be useful to understand in practice how many fall under this bracket to determine the weight to be applied to any changes,’ it said.

“In practically every sphere of legal practice there remains the ability to bring cases which are reckless, malicious, unfounded, or otherwise doomed to failure (judicial review being an exception). This is a necessary cost to ensure those who genuinely require protection or redress are afforded it.”

The Law Society meanwhile said in its response that it did not believe there was a case for the sweeping reforms proposed.

It said the proposals would damage the rule of law because many would either reduce government accountability or shield public bodies from it.

“This undermines a crucial element of the rule of law, preventing people from challenging unlawful uses of power and undermining good governance,” the society said.

Reducing government accountability “undermines the ability to access justice” and several proposals “would make it harder to bring human rights claims or reduce the availability of effective remedies”.

Chancery Lane said it was “alarming that proposals include the removal of rights on a blanket basis from certain categories of individuals”.

Overall, the proposals would be likely to see more cases being taken to the European Court of Human Rights if it became harder to enforce such rights in the domestic courts.

Changes that the Law Society would support were limited to introducing a database of judgments which rely on an interpretation under section 3 of the Human Rights Act, to allow greater understanding and scrutiny of its use, and changing the remedial order process so that it cannot be used to amend the Human Rights Act itself.

It also made a number of recommendations of its own which included introducing group actions for human rights claims, creating a mechanism for reviewing human rights judgments and evaluating where legislative or policy changes are required, and  a system of independent judicial oversight of detention decisions of suspected insurgents abroad.

Earlier this month the Welsh and Scottish Governments strongly criticised the UK Government’s plans to replace the Human Rights Act with a Bill of Rights, describing it as an “ideologically motivated attack on freedoms and liberties.”

Mark Smulian

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