The Government has set up an Independent Review into the Human Rights Act 1998. This report contains our views on the topics which are the focus of that Review. The evidence we heard has led us to conclude that there is no case for changing the Human Rights Act.
The Human Rights Act incorporated the European Convention on Human Rights into UK law. It has had a positive impact on the enforcement and accessibility of rights in the UK. Cases are now heard by UK judges in UK courts rather than applicants having to take cases to Strasbourg. This means that cases are heard sooner, court action is less prohibitively expensive, and UK judges are able to take better account of our national context when reaching decisions than judges in Strasbourg. Whilst courts can find legislation incompatible with our ECHR obligations, the courts cannot overturn primary legislation, keeping parliamentary sovereignty intact. The requirement for public authorities to act compatibly with ECHR rights has embedded human rights in the delivery of public services. The Act is a central part of the devolution settlement in the UK. To amend the Human Rights Act would be a huge risk, to our constitutional settlement and to the enforcement of our rights.
The Government’s Review looks closely at the relationship between the UK courts and the European Court of Human Rights. We found that the Human Rights Act does not unduly constrain the domestic courts. The requirement in section 2 of the Act that UK courts take into account relevant factors, including ECtHR judgments, is entirely sensible. Without it, UK courts could not engage properly with factors relevant to the matters before them and would risk more successful appeals to Strasbourg. It would also risk the ECtHR having less confidence in UK judgement and thus according the UK less of a margin of appreciation. Any change to section 2 HRA could only serve to damage the rights of UK citizens—with the associated increases in time and cost of cases going to Strasbourg.
The Human Rights Act was designed to maintain parliamentary sovereignty. It does this successfully by the mechanisms in section 3 and 4 of the Act which ensure that legislation is read compatibly with Convention rights where possible. Courts cannot strike down primary legislation; the Government propose amendments to laws where incompatibilities are found (either through primary legislation or remedial Orders) which are then subject to scrutiny by Parliament. Where secondary legislation is found to be incompatible with ECHR rights the Courts can strike it down but this is an appropriate check on the power of the executive rather than a challenge to parliamentary sovereignty. Whilst the Courts may challenge the Government, they do so in a way which is consistent with the wishes of Parliament. As former Attorney General Dominic Grieve QC PC told us, “Did I ever feel that government was being rendered ineffective by Human Rights Act claims? No, I did not.” There is no case for changing the Human Rights Act on the basis of the impact on the separation of powers in the UK.
Article 13 of the European Convention on Human Rights provides a right to an effective remedy for a breach of Convention rights. The Government must be cautious about any changes to the Act that would limit the way in which individuals can access effective remedies. In particular, if some categories of people were unable to seek to enforce their rights in UK courts or if the extra territorial effect of the Act were limited this would mean claimants would need to go to Strasbourg. This would damage enforcement of rights in the UK and would risk placing the UK in breach of its duties under Article 13 of the ECHR.
Our report also makes the following conclusions on other elements of the Government’s Independent Review’s Terms of Reference:
The Independent Human Rights Act Review (IHRAR) has not taken place in isolation. It followed the Independent Review of Administrative Law (IRAL), which considered potential reforms to judicial review, which has itself been followed by a Government consultation. Since judicial review applications in the Administrative Court play a key role in enforcing human rights through the HRA, any reforms that would affect access to judicial review or the remedies available would have implications for the efficacy of the HRA and for compliance with Article 13 ECHR. We will scrutinise any forthcoming legislation on Judicial Review with its impact on the enforcement of human rights in mind.
The Human Rights Act has had a wide impact outside the courtroom, Whitehall, and Westminster. The Act requires public authorities to act in a way that is compatible with Convention rights. This duty, contained in section 6 of the Act, has embedded human rights amongst public authorities and has reduced the need for litigation to enforce people’s rights. However, where rights do need enforcement through the courts, this must be accessible to all. The Government should take the opportunity of the review of means testing for legal aid support to look at how best to support those who might be least able to defend their rights in court. The Equality and Human Rights Commission must be given the same enforcement powers for human rights as for equality laws.