Joint Committee On Human Rights Thirty-Second Report

4  The Home Office Review


97. The Home Office has yet to publish the outcome of its own review of the implementation of the HRA. However, there were reports on BBC Radio 4 in July that the Home Office's review of the impact of the HRA on Home Office decision-making had identified some twenty-five examples of the HRA causing difficulties for decision-makers.

98. In the absence of any more detailed information about the Home Office review in the public domain, our Chair wrote to the Home Secretary on 16 October 2006 asking him to provide examples of the cases where the Act had caused difficulties for decision-makers.[81] Baroness Scotland replied on the Home Secretary's behalf on 26 October 2006.[82] The letter informed us, for the first time, that the BBC reports in July referred to a leaked discussion document drafted to inform initial discussions in the Home Office's review about areas where legislation, regulations and administrative rules, or the interpretation or administration of such legislation and regulations may be impeding decision-making. It was "a starting point for discussion and was not identifying conclusive examples of where the HRA had been found to impede decision-making."

99. Baroness Scotland's letter also informed us that the conclusions and recommendations of the Home Office's Review of decision-making in the Criminal Justice, Immigration and Asylum Systems had been published in "the CJS Rebalancing Review",[83] but she provided us with a summary of the findings of that review "to inform this JCHR inquiry". The Home Office Review is described as "complementing" the wider review undertaken by the DCA.

The Review's conclusions

100. The Home Office's Review found that in general human rights legislation is perceived by the majority of agencies in the Criminal Justice System as being helpful by providing a useful framework in which to operate. Many of the impediments to policy which were currently being attributed to the HRA often existed before the HRA was enacted (such as the decision in Chahal) and, even if it had not been enacted, would probably still have occurred under the common law or the UK's long-standing obligations under the ECHR. The Review therefore concludes that radical amendment of the HRA will have little benefit in improving the effective and efficient delivery of policy objectives or make them more in line with public expectations because the UK is committed to remain a signatory to the ECHR.

101. However, the Review also claims to have identified a "risk averse culture" across the Criminal Justice, Immigration and Asylum systems, based on "some evidence" of a "sometimes cautious interpretation" of the ECHR and the HRA:

"There is some evidence from the agencies of an occasionally cautious interpretation of the Human Rights Act and particularly those Articles of the Convention that require the rights of the individual to be balanced with public safety. A culture needs to be developed that is less risk averse to ensure that misconceptions around human rights are not in any way preventing the effective delivery of policy. To an extent this may arise from a lack of central co-ordination and consistency on messages being circulated to agencies on the approach to adopt when balancing rights. However, there may also be a fear of litigation that may encourage those who develop guidance to be cautious in their interpretation."

102. This caution, it is said, can "on occasion" impede the successful delivery of policy, and the Review finds that action is therefore required to address it. The action proposed includes the establishment of a "Scrutiny Panel" to scrutinise legislation, practice and training in frontline agencies to ensure a co-ordinated robust approach is taken, and setting up a website and advice service available to front line staff.

The evidential basis of the Home Office Review

103. The summary of the Review's findings provide very few if any concrete examples of cautious interpretations of the HRA or the ECHR, or any other examples of risk aversion in decision-making which is impeding effective delivery of policy.

104. In her evidence to us Baroness Scotland confirmed that, contrary to the BBC reports in July there were not in fact 25 examples of the Human Rights Act impeding Home Office decision-making: that was simply wrong,[84] based on a leaked discussion document which identified 25 areas for discussion, not 25 conclusive examples of where the HRA had been found to impede decision-making. We asked Baroness Scotland to give us some examples of cautious interpretations of the HRA, or other evidence of the existence of a "risk-averse culture" across the various agencies. We regret that we did not find much enlightenment in her answer, which referred in general terms to decision-makers' under-confidence, without giving any specific examples of overcautious interpretations.[85] Nor were any examples given of the many myths which it is said have been improperly absorbed by practitioners.[86]

105. We welcome the Review's proposals to take a series of very practical steps (new guidelines, a Scrutiny Panel, a website and a helpline) to help practitioners on the ground better understand how they should implement the Act. On the evidence we have seen to date, however, we doubt whether it can credibly be said that there is "a culture of risk aversion" across the agencies dealing with criminal justice, immigration and asylum. The lack of evidence of actual examples of such cautious interpretations and the fact that the Review itself describes them as at most "occasional" suggests that the incidence of such overcautious approaches falls far short of being sufficient to amount to a culture of risk aversion.


106. The Home Office Review also found that media reporting of human rights issues, particularly by the tabloid press, is not always accurate or complete, and the recommendation that the Home Office should, working with the DCA, develop a proactive and reactive approach to myth-busting, involving immediate rebuttals of future news stories that misrepresent the Act coupled with efforts to disseminate positive messages around the Act to the wider public. We welcome this conclusion.

Publication of the Review's findings

107. The Home Office's Review, unlike the DCA's, remains unpublished. Baroness Scotland told us that the Review was an internal review and that there are no plans to publish any more than the Rebalancing the Criminal Justice System paper which seeks to implement the conclusions of the review, but that she was willing to think again about publishing the full Review. [87] In her letter dated 6 November 2006, however, Baroness Scotland said that after careful consideration she had decided that only the summary should be made publicly available as part of the evidence to our inquiry.[88]

108. In our view there are strong reasons for publishing the Review itself: first, to put into the public domain the evidential basis for its conclusion that there is a culture of risk aversion throughout the criminal justice, immigration and asylum systems, to allow that claim to be tested; and second, to rebut the BBC reports in July suggesting that the Home Office's internal review of decision-making had identified some twenty-five examples of the HRA impeding decision-making. We regard this as a good example of just the sort of rebuttal envisaged by the Review itself.

81   Appendix 5. Back

82   Appendix 6. Back

83   Rebalancing the Criminal Justice System, July 2006, considered in chapter 5 below. Back

84   Q30. Back

85   Q76. Back

86   Q25. Back

87   Qq 25 and 29. Back

88   Appendix 6 Back

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