Leducate Explains: The Independent Human Rights Act Review
Hint - key terms are defined. Just click on the blue words to see their definitions!
This LedEx post seeks to explain the Independent Human Rights Act Review which explored the perceived problems with the Act and provided some recommendations.
Introduction
The Conservative Party manifesto of 2019 promised the establishment of a ‘Constitution, Democracy and Rights Commission to review the operating features of the UK constitution. This far-reaching plan has been somewhat shelved since 2020, but the Independent Human Rights Act Review did materialise. The Human Rights Act 1998 marked a shift in UK constitutional law; the benefits and drawbacks have long been debated.
WHAT is the Human Rights Act 1998?
The Human Rights Act brings the rights found in the text of the European Convention of Human Rights into UK law. Previously, the UK had ratified the Convention as a signatory member in 1951, and since 1966 the UK has accepted the jurisdiction of the European Court of Human Rights in Strasbourg. The text of the Convention was, however, not justiciable in British courts meaning a British citizen would have to take a case concerning his rights to the Strasbourg court.
The Human Rights Act 1998 attempted, in part, to resolve this problem by incorporating the rights under the Convention into domestic law thereby allowing British courts to assess human rights claims. Further, the Act required the government and public bodies to comply with the rights of the Convention. The Human Rights Act remains like any other statute; it has no elevated constitutional status (the Act can be repealed like any other with a simple majority in the House of Commons and the House of Lord) and the courts do not have greater power over Parliament.
For more information on this topic, see Leducate’s article on The European Convention of Human Rights. For more information on the relationship between the courts and Parliament, see Leducate’s article on The Royal Prerogative.
WHY is the Human Rights Act 1998 being reviewed?
Independent experts are often appointed to conduct reviews of legislation. Reviews consult academics, lawyers and experts to give their views on matters in an Act and the chairman will give ‘recommendations’ of how to reform the Act in a report. This has key advantages:
It helps create durable reform – these reviews take time to conduct and if a greater number of experts are consulted, the chairman can give recommendations that will improve the Act in the long term.
It is less politically contentious – the chairman and experts are independent from politics meaning their report is more likely to be accepted by the major political parties. The idea is to reduce the chance that different governments will seek to change the law after every election.
In this case, Sir Peter Gross, a former Court of Appeal judge, was asked to conduct an independent review of the Human Rights Act to examine two broad issues: first, the relationship between the domestic courts and the European Court of Human Rights; and second, the impact of the Human Rights Act on the relationship between the Judiciary, the Government and Parliament. Sir Peter published his findings in a report in December 2021. He looked at key criticisms of the Human Rights Act and its application:
An overreliance on the jurisprudence of the European Court of Human Rights – section 2 of the Act requires English courts to “take into account” relevant decisions of the European Court of Human Rights.
A perception that the courts have been granted more law-making powers with regards to human rights through section 3 – some believe that these decisions should be left to Parliament only.
The review of the Human Rights Act reflects a pattern of independent reviews into UK public law undertaken in recent years, including the Independent Review into Administrative Law chaired by Lord Faulks KC. There appears to have been little to no agreement on the way in which the provisions of the Human Rights Act should be reformed. A fixed premise of the independent review was that the UK is committed to remaining a party to the European Convention on Human Rights. The report of Sir Peter has provided recommendations as to how the functioning of the Act could be improved: notably, an increased transparency on the use of section 3 to interpret UK law in a manner that is compliant with the rights under the Convention and that UK courts should prioritise guidance in statute and common law before using the jurisprudence of the European Court of Human Rights. It is unclear how, and indeed if, these recommendations will be used.
Conclusion
The motives of the present government appear unclear; conceptually, there is support for the Human Rights Act but a recognition of the criticisms of its operation. The former Supreme Court Justice, Lord Sumption goes further stating that the UK should withdraw from the jurisdiction of the European Court of Human Rights.(1) As dynamics of British politics change, sometimes abruptly, we shall have to wait longer to see the consequences of this debate unfold!
Written by Nicholas Haddad
Glossary box
Ratified – the final stage whereby a text or treaty becomes law. In terms of treaties between nation states, this process occurs when the terms of a treaty have been agreed and the nation states have agreed to be bound by the treaty.
Jurisprudence – the theory or philosophy of law that emerges from legal decisions of a court or from statutes passed in Parliament. In the case of legal decisions, the examination of one or more cases provides a grander view of how law is to be applied – legal decisions tend to give explanations of the meaning of the law and give directions of how to apply it in future.