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

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Conclusions and recommendations

The Human Rights Act 1998

1.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. (Paragraph 17)

2.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. (Paragraph 25)

The relationship between the European Court of Human Rights and the Domestic Courts: Section 2 Human Rights Act

3.The requirement in section 2 HRA that the court must take into account judgments relevant to the proceedings before it is eminently sensible. It would be bizarre for a court to take into account any factor that is irrelevant to the proceedings in question–equally it would seem irresponsible for a court not to take into account a judgment that was relevant to the proceedings before it. (Paragraph 31)

4.The requirements of section 2 HRA strike the correct balance in that the UK courts take into account relevant considerations, but are not bound by them. The domestic courts are not unduly constrained by section 2 HRA as cases where the domestic courts have departed from Strasbourg case-law illustrate. Importantly, even in these cases the domestic courts do have regard to relevant ECHR case-law, so as to best consider how the applicable human rights standards should be applied in the UK context. It is only by UK courts having appropriate regard to the relevant case-law that they can engage with it appropriately, reach the correct results and engage in fruitful judicial dialogue with the Strasbourg Court. (Paragraph 37)

5.If domestic courts did not have to take due account of Strasbourg jurisprudence that was relevant to the case before them this would risk domestic cases being decided without due regard to the relevant human rights standards and case law. This in turn would simply mean more successful cases against the UK in Strasbourg. Therefore, any attempt to reduce the extent to which domestic courts are required to ‘take into account’ caselaw of the ECtHR relevant to the case before them—for example were section 2 to say that a judge “may” take ECtHR case law into account rather than “must”—would inevitably lead to greater numbers of successful appeals to the ECtHR in Strasbourg, as well as poorer enforcement of human rights for victims in the UK. (Paragraph 38)

6.In considering the extent to which the domestic courts should be restricted to merely keeping pace with the Strasbourg case-law, the current balance that has been struck by the case law is sensible. It enables domestic courts to apply the Convention to the domestic context, with their greater understanding of the domestic system, whilst also ensuring that cases that would be a significant step forward in interpreting a Convention right would need to go to Strasbourg. It would seem unhelpful to seek to reopen this careful balance. (Paragraph 47)

7.The UK courts play a crucial role in ensuring that the UK is accorded the full extent of the margin of appreciation available to it, through their efforts to set out how rights are protected within the national legal context. (Paragraph 56)

8.Any steps taken to minimise the ability of the UK domestic courts to properly consider the application of the Convention rights in the UK context would risk the ECtHR having less confidence in the UK’s systems and therefore according it less margin of appreciation. We therefore cannot see how it would be advantageous to the UK to weaken the role of the judiciary in upholding human rights–either from the perspective of individual citizens or the system overall. (Paragraph 57)

9.The UK courts are used to applying the doctrine of judicial deference to accord the executive and the legislature a certain latitude in making policy decisions that they are uniquely or better placed to determine. The UK courts are therefore very well placed to apply the margin of appreciation and they perform a central role in ensuring that the UK is accorded the full extent of the margin of appreciation available to it. (Paragraph 64)

10.Moreover, in the rare cases where a political (rather than a legal) solution would be preferable, and where a wide margin of appreciation would likely be accorded to the State, the Courts have been cautious and have sought primarily, to encourage the other organs of State to fulfil their roles in the protection of human rights within the UK system. We welcome this cautious approach by the courts. (Paragraph 65)

11.It is clear that there is a very healthy state of judicial dialogue as between the ECtHR and the UK judiciary. We agree with President Robert Spano and Judge Tim Eicke when they said, “our view is that both the formal and the informal judicial dialogue is going extremely well and it is rather difficult to identify any particular area for improvement”. Such a sentiment was also echoed by Lady Hale in her evidence to the Committee. Both informal and formal judicial dialogue is clearly working well. In particular, the operation of section 2 HRA clearly allows for very healthy state of judicial dialogue in the form of judgments. It would therefore seem prudent not to change these successful practices; in our opinion too much risks being lost by any amendments to section 2 HRA. (Paragraph 70)

12.As a result of the HRA, a human rights case is first determined by UK judges, who:

a)understand the complex and subtle balances at work within the relevant UK legal systems;

b)understand how human rights are given effect in those legal systems;

c)apply a considered analysis of how the relevant fundamental protections, including ECHR rights and relevant case-law apply to the case;

d)apply that understanding to the facts of the case, explaining their reasoning and how the balances are met within those legal systems in their judgment; and

e)are able to dispose of obvious human rights breaches without wasting time and money and extending suffering by needing to litigate in Strasbourg. (Paragraph 71)

13.As a result of the above and because UK judgments show the detailed judicial reasoning in the judgments:

a)Fewer cases from the UK are litigated before the ECtHR than was the case before the HRA;

b)ECtHR judges have been able to rely on the reasoning in UK judgments to better understand how the national UK legal systems protect human rights;

c)If a case reaches the ECtHR, there is less of a risk of adverse ECtHR judgments arising due to any misunderstanding as to how the domestic legal system protects human rights;

d)The margin of appreciation accorded to the UK is significant as there is confidence in the national processes established by the HRA, including the national courts’ role in applying human rights, following careful consideration of any case-law relevant to the case before it;

e)Where there are differences of opinion, there are clear and constructive mechanisms (through ‘judicial dialogue’) to resolve any differences of opinion based on misunderstandings. (Paragraph 72)

14.Any change to the current operation of section 2 would be unnecessary, unhelpful and counterproductive. (Paragraph 73)

The separation of powers: sections 3 and 4 Human Rights Act

15.Section 3 HRA allows the judiciary to ensure that legislation is read compatibly with the Convention where possible. This supports the overarching intention of Parliament that legislation should not violate Convention rights. We have not been provided with any evidence to suggest that the courts are wrongly applying this power or that its use undermines or usurps the role of Parliament. The fact that it is hard to identify any cases in which Parliament has felt the need to correct a court’s interpretation of legislation under section 3 HRA strongly indicates that the courts are not using section 3 to trespass on to the territory of the legislature. There is no case for amending or repealing this provision. (Paragraph 105)

16.The court’s power to quash secondary legislation that cannot be read compatibly with Convention rights respects Parliamentary sovereignty rather than challenging it. It is also an appropriate check on the power of the Executive, in accordance with the separation of powers and the rule of law. (Paragraph 112)

17.The declaration of incompatibility under section 4 HRA provides an elegant solution to the potential conflict between the protection of fundamental rights and the sovereignty of Parliament. Where a human rights compatible interpretation is not possible, the courts are able to identify primary legislation that is incompatible with human rights, drawing it to the attention of government and Parliament, but they cannot go further. (Paragraph 121)

18.The use of section 3 HRA interpretation wherever “possible” and reserving section 4 declarations of incompatibility as a remedy of last resort creates a sensible and respectful balance between the roles of the Judiciary and Parliament. An increase in the use of declarations of incompatibility at the expense of section 3 interpretations would have significant ramifications: leaving victims without effective redress for human rights violations and placing a considerable additional legislative burden on Government and Parliament. There is again no case for reform. (Paragraph 131)

19.While the changes to the HRA mooted by the IHRAR terms of reference, including in respect of sections 3 and 4, look to be relatively minor, minor changes could have a major impact on the protection of human rights in the UK. (Paragraph 136)

20.Sections 3 and 4 HRA work together to balance protection for fundamental rights, an aspect of the rule of law, with the separation of powers and respect for Parliamentary sovereignty. We have not been provided with evidence justifying any change to the careful balance struck by these provisions, and consider that the changes mooted by the IHRAR terms of reference would be damaging for this balance rather than beneficial. (Paragraph 137)

The right to an effective remedy: Article 13 ECHR

21.The ability to enforce Convention rights is crucial to the protection of human rights. The HRA is the principal way in which the UK both secures to everyone within its jurisdiction the Convention rights (Article 1 ECHR)–and how it enables them to be enforced so that there is an “effective remedy” in case of a breach of Convention rights (Article 13 ECHR). (Paragraph 150)

22.Any change to the HRA, particularly any change that makes it more difficult for domestic courts to remedy human rights violations brought before them—or even effectively prevents courts from hearing certain cases—risks weakening the UK’s ability to comply with its obligations under Articles 1 and 13 ECHR (as well as any related substantive rights). (Paragraph 151)

23.Any efforts to exclude or limit certain subject-matters or categories of people from the scope of the HRA would risk putting the UK in breach of its obligations under Article 13 ECHR, as well as being a retrograde step for compliance with human rights and the rule of law in the UK. Moreover, any effort to limit the way that individuals can access effective remedies or enforce their rights under the HRA would risk creating gaps in individuals’ ability to enforce their human rights and to obtain an effective remedy, which again would risk placing the UK in breach of its duty under Article 13 ECHR to provide any person whose rights have been violated with an effective remedy at the national level. (Paragraph 152)

24.Moreover, if some categories of people cannot seek to enforce their human rights before UK courts, we would not have the benefit of the UK Courts having first carefully considered the application of the relevant domestic laws and practices to the given case–and analysing the human rights compatibility of those laws in light of their in-depth understanding of how those laws work. As a result, we would likely see an increase in the numbers of cases needing to be litigated in Strasbourg, and an increase (as was seen prior to the HRA) in the number of UK cases raising issues around the UK’s non-compliance with the right to an effective remedy for a breach of human rights. (Paragraph 153)

Extra-territorial effect of the Human Rights Act

25.The extra-territorial effect of the HRA is now relatively settled. It essentially ensures protection for those under the control of UK public authorities, even when those public authorities are operating overseas. It is important that UK Armed Forces personnel overseas - as well as other victims of human rights violations - can also benefit from the protections in the HRA. (Paragraph 172)

26.As we concluded in our Report on the Overseas Operations Bill, effective investigations into allegations of human rights violations by troops overseas are valuable and important and allow lessons to be learned. Changes to the HRA that would threaten the conduct and quality of such investigations would be of significant concern. (Paragraph 180)

27.Ultimately, the Human Rights Act binds public authorities acting overseas only to a limited extent. It does so because the ECHR applies to all signatory states in respect of extra-territorial actions in certain, limited circumstances. Any attempt to amend the HRA to limit the extent to which public authorities acting overseas are bound by it could leave a category of victim under the Convention unable to obtain a remedy in the UK. This would put the UK in breach of its Article 13 ECHR obligation to provide those victims with an effective remedy. It would also leave the actions of UK public authorities, including the armed forces, open to challenge in the European Court of Human Rights rather than in the domestic courts. It may even expose our armed forces to the jurisdiction of the International Criminal Court. There is no justification for making any such amendments to the HRA. (Paragraph 181)

Administrative Law

28.The 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 the right to an effective remedy for a breach of an ECHR right (Article 13 ECHR). (Paragraph 197)

29.Limited changes such as those recommended in the IRAL report could potentially be accommodated within a system that provides effective human rights protection. However, some of the proposals in the Government’s consultation paper, concerning ouster clauses and changes to judicial review remedies, could harm the ability of the HRA to be used to enforce rights and provide an effective remedy in accordance with Article 13 ECHR. The JCHR will carefully scrutinise the forthcoming Judicial Review Bill. (Paragraph 198)

Derogating from the ECHR: Designated Derogation Orders and Remedies

30.It is important that both the parliamentary and judicial controls on the legality and necessity of derogations are retained. Moreover, as we have seen in our previous work, it is clear that parliamentary scrutiny of derogations should be improved. Given the absence of improved parliamentary scrutiny of derogations, judicial scrutiny is all the more crucial. (Paragraph 221)

31.The UK has only rarely derogated from the ECHR. Since the entry into force of the HRA only one designated derogation Order has been made. There is a very limited evidence base on which to assess whether there is any need for improved or bespoke remedies for challenges to designated derogation Orders. As such, we think there is a limited need and a limited case for reviewing the current arrangements for remedies for challenges to designated derogation Orders. (Paragraph 222)

32.Judicial scrutiny of UK derogations from the ECHR and designated derogation Orders is essential to ensure that human rights are not violated. Impeding the courts from delivering an effective remedy to a person whose human rights were violated would be deeply problematic. (Paragraph 223)

33.The national courts are also best placed to assess the evidence relating to the existence of an emergency threatening the life of the nation–and this has been recognised by the ECtHR who will pay significant attention to the views of the national courts on such matters. The national courts can therefore play a key role in setting out the context of an emergency and the extent of the margin of appreciation to be accorded to the State. (Paragraph 224)

34.The current arrangement whereby the domestic courts have powers to issue quashing orders in respect of a designated derogation Order, but only to make a declaration of incompatibility in respect of a provision of an Act of Parliament reflects the status quo for the powers of the courts in relation to statutory instruments as compared to Acts of Parliament. Moreover, it seems to us to strike the right balance in ensuring respect for Parliamentary sovereignty, whilst also ensuring that acts of the executive that unlawfully violate a person’s human rights are quashed. (Paragraph 225)

Parliamentary scrutiny of remedial Orders

35.Remedial Orders are subject to enhanced scrutiny by the JCHR - which carefully examines remedial Orders for both procedural propriety as well as substance. The ensuing JCHR Reports then inform the subsequent debates and votes by both Houses on the remedial Order in question. Remedial Orders therefore already receive a significant level of scrutiny. (Paragraph 235)

36.In practice, the remedial power is not used for politically sensitive issues and therefore its use has not been seen as controversial. Given pressures on parliamentary time there is very little appetite for requiring stricter procedures and processes for non-controversial matters. There is therefore little need or appetite for a more stringent parliamentary process in respect of remedial Orders. (Paragraph 236)

The nations of the UK and the devolution statues

37.We find the evidence of witnesses with direct experience and understanding of the particular circumstances of Northern Ireland persuasive. The commitment to the incorporation of the ECHR is a key feature of the Good Friday Agreement. Even the relatively technical changes under consideration could have unintended consequences. We are very concerned about the possible implications of upsetting the delicate framework that currently exists. (Paragraph 248)

38.The incorporation of the HRA into the devolution settlements and the limits it places on the power of ministers and institutions have made human rights compliance central to policy making in the nations of the UK. This appears to have fostered a positive attitude towards human rights. (Paragraph 257)

39.It is essential that proposals to amend the HRA take account of its unique role in the constitutional arrangements of the devolved nations and the implications for the future of the union. The Government should not pursue reform of the HRA without the consent of the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly. (Paragraph 258)

Enforcing and embedding rights

40.Concentrating on certain narrow constitutional and legal questions, as important as they may be, fails to acknowledge the difficulties that many ordinary people have in enforcing their rights. Section 6 of the Human Rights Act makes human rights real and accessible to service users without recourse to the courts by requiring public authorities to act compatibly with the Act. Where public authorities are complying with this duty, it means that human rights are respected and embedded in service delivery. The Government must look at ways to spread best practice in human rights compliance across the public sector including through training and information programmes. (Paragraph 265)

41.We hope the Government takes the opportunity of the review of means testing for legal aid support to consider how best to ensure that people are able to vindicate their human rights in court. (Paragraph 267)

42.It is greatly disappointing to us that the Government’s review into the Human Rights Act has not engaged with the role and powers of the EHRC and its role in enforcing rights. The role of the EHRC in enforcing rights must be strengthened by allowing them to undertake investigations into named bodies for possible breaches of the Human Rights Act and to provide legal assistance in Human Rights cases. (Paragraph 272)

43.The Government should consider whether there is the need for additional mechanisms to make the enforcement of rights more accessible. Any such mechanism should not impede access to justice through the courts when necessary, and must deliver on the enforcement of human rights. (Paragraph 276)