The Government’s Independent Review of the Human Rights Act Contents

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2The Human Rights Act 1998

6.The Human Rights Act 1998 (“HRA”) incorporated the European Convention on Human Rights (ECHR) into UK law. The aim was to “bring rights home”, enabling people to enforce their rights in the domestic courts. The Act, in the words of Lord Irvine, the then Lord Chancellor, at second reading of the Human Rights Bill in the House of Lords, “does not create new human rights or take any existing human rights away. It provides better and easier access to rights which already exist”.3

The European Convention on Human Rights

7.The ECHR came into force on 3 September 1953. The adoption of the Convention by the Council of Europe was the first step in implementing the UN’s Universal Declaration of Human Rights of 1948. By ratifying the Convention, member states accept international legal obligations to guarantee certain civil and political rights to individuals within their jurisdiction. These rights are contained in a series of Articles of (and Protocols to) the Convention.

8.The European Court of Human Rights (ECtHR) is an international court, based in Strasbourg. It rules on individual or State applications alleging violations of the civil and political rights set out in the ECHR. The ECtHR was established in 1959 by the Council of Europe Member States themselves to ensure the observance of the obligations that they had undertaken. It seeks to ensure compliance with the Convention for 800 million people in the 47 member States that have ratified the Convention. The ECtHR is separate from the European Court of Justice which adjudicates on EU law.

9.The United Kingdom ratified the Convention in 1951 and in 1965 declared that it would accept the jurisdiction of the ECtHR in relation to individual complaints.

The provisions of the Human Rights Act

10.The HRA effectively incorporated the ECHR into domestic law. The HRA was intended to ‘bring rights home’ and does so in part by allowing human rights claims to be brought in domestic courts, as well as, for example, through a culture shift in the approach taken by public authorities to embedding human rights into their policy-making and operational actions. The central provisions of the Act, which came fully into force on 1 October 2000, are as follows:

• Section 2 ensures that the courts “must take into account” the judgments and decisions of the European Court of Human Rights that are relevant to the proceedings before the court in question.
• Sections 3 and 4 require legislation to be interpreted compatibly with Convention rights “so far as it is possible to do so” and provides for the courts to make declarations of incompatibility when such an interpretation is impossible in relation to primary legislation.
• Section 6 requires public authorities to act compatibly with Convention rights. This obligation applies to all bodies carrying out “functions of a public nature”, including central Government and the courts. However, in recognition of the constitutional primacy of Parliament, section 6 expressly does not apply to “either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”
• Sections 7 and 8 give individuals whose rights have been violated the right to bring proceedings and obtain remedies in domestic courts rather than having to go to Strasbourg to have their rights enforced.

Enforcing human rights in the UK prior to the Human Rights Act

11.Before the HRA’s entry into force, the UK was already bound by the ECHR as a matter of international law, which meant the Convention had the following effects in UK domestic law:

a)The ECHR served as an aid to construction of domestic legislation, but only where there was ambiguity (it being assumed in cases of ambiguity that Parliament intended to legislate compatibly with the UK’s international human rights obligations).4

b)It informed the exercise of judicial discretion.

c)It assisted in establishing the scope of the common law (i.e. law made by judicial interpretation and precedent) where it was developing and uncertain or incomplete.5

12.An individual in the UK could enforce their ECHR rights, but only by petitioning the European Court of Human Rights directly. Taking a case to Strasbourg was both time-consuming and expensive. The White Paper that preceded the Human Rights Bill said that, “For individuals and for those advising them, the road to Strasbourg is long and hard. Even when they get there, the Convention enforcement machinery is subject to long delays”.6 It added that, at that time, it took an average of five years to exhaust all domestic remedies and cost an average of £30,000.

13.An example of the excessive delay involved in the pre-HRA enforcement of ECHR rights is provided by the Sunday Times ‘thalidomide’ case.7 The domestic claim was initially decided by the High Court in 1972, and the final appeal was decided by the House of Lords in 1973. The European Court of Human Rights did not give its ruling until 1979, and Parliament responded to the judgment against the UK by enacting the Contempt of Court Act in 1981. Almost 10 years passed between the violation of rights and the law being changed to resolve the incompatibility.8

14.Moreover, before incorporation cases before Strasbourg would result in judges unfamiliar with the careful balances struck within the UK’s domestic legal systems deciding a case usually without the benefit of seeing the analysis of UK judges applying human rights standards to those domestic laws. Domestic courts were very rarely considering the extent of ECHR rights and so would only very rarely have regard to the case-law of the ECtHR (in line with the limited role played by the ECHR summarised in paragraph 12 above). As such, the ECtHR was often the first court to apply the Convention standards to the facts of a UK case. The White Paper argued for the improvements that the HRA could bring to this situation:

“Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts - without this inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law. And there will be another distinct benefit. British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe”.9

15.The White paper further suggested that the number of findings against the UK by the Commission and the ECtHR was proof that the approach taken by the UK until that point did not sufficiently reflect the importance of the Convention and had not stood the test of time.

16.As many of our witnesses pointed out, data on UK cases at the ECtHR illustrate the success of the HRA in bringing rights home. The ECtHR told us in their evidence that the number of applications against the UK was low: since 2017 the figure per 100,000 inhabitants was just 0.06 - the lowest of all the 47 Member States over the last four years. Moreover, the vast majority of cases lodged against the United Kingdom were found to be clearly inadmissible and were decided in a summary procedure by a single judge. The Court gave us the most recent statistics:

“In 2020, the Court decided 284 cases lodged against the United Kingdom. It declared inadmissible or struck out 280 applications. It found a violation of the Convention in two cases. It found no violation in one case and it further struck one case out of the list in a judgment following the acceptance of the friendly settlement declaration. In 2019, the Court decided 359 cases lodged against the United Kingdom. It declared inadmissible or struck out 347 applications. It found violation of the Convention in five judgments concerning 12 applications.”10

17.The HRA enables us to argue for our rights in British courts. Relative to population size, the UK has the lowest number of claims brought against it of all Member States at the European Court of Human Rights. Of those claims that are brought, only a tiny fraction lead to an adverse finding against the UK.

Positive impact of the Act

18.The HRA has brought the rights guaranteed under the ECHR to the foreground for UK public authorities, influencing decision and policy making to improve respect for human rights. Those representing marginalised groups have emphasised the importance of the HRA in enabling those groups to enforce their rights, from children’s rights,11 to those preparing for the end of life.12

19.Where public authorities fail to act compatibly with Convention rights, the HRA provides a remedy via the courts. The Equality and Human Rights Commission (EHRC) told us that this has improved practice among public authorities, and provided “a common framework of legal principles, which can promote high-quality, user-focused services, and guide decisions about competing priorities”.13 This also means that many more issues can be resolved without the need to resort to litigation.

20.As we will set out in this report, the duty imposed on public authorities to act compatibly with the Convention, combined with the ability to have human rights claims heard in UK courts, means fewer cases need to go to court, and when they do, the cost and time of finding a resolution are radically reduced.

21.The HRA also reduces the likelihood of the UK Government being found in breach of the Convention by the ECtHR by enabling the UK courts to rule on Convention rights, which they do in a way which is respected by and helpful to the ECtHR. Further, it helps the ECtHR by providing valued UK judicial input into ECHR jurisprudence.

No case for change

22.The Government asked the Review to consider:

• “The relationship between the domestic courts and the European Court of Human Rights (ECtHR) …
• The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
• The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.”14

23.The evidence we have received, as we will set out in the chapters that follow, overwhelmingly finds that these are not problematic.

24.By concentrating on these narrow issues, the opportunity has been lost to consider the positive impact of the Human Rights Act, and what can be done to maximise this. As Southall Black Sisters wrote in their submission, the terms of reference “fails to give any consideration to the positive impact that the HRA has had for the most vulnerable in our society”.15 The National Aids Trust told us that “None of the questions seek to assess the success of the HRA’s original aim around supporting a culture of respect for human rights or indeed of making Convention rights enforceable in the UK legal system”.16 The legal language of the review was raised by the British Association of Social Workers who told us that “Conversations about the future of human rights should be accessible to all, and not reduced simply to a legal discourse”.17 We will consider these issues ourselves in chapter 11 below.

25.The HRA has had an enormously positive impact on the enforcement of human rights in the UK. Whilst it is sensible that the Review’s terms of reference focused on specific issues, concentrating only on narrow legal and constitutional questions means there is a risk that proposals are made that are divorced from their wider context and will harm the enforcement of human rights.