ANNEX 1
Joint Committee On Human Rights Thirty-Second Report
(2005-06): The Human Rights Act: the DCA and Home Office Reviews
Summary
Introduction
In May 2006 there was public controversy over the
Human Rights Act 1998 (HRA). Three high-profile cases led some
to argue that the HRA, or the way it was being interpreted, was
preventing the Government from ensuring public safety, and that
it should be repealed or amended. The Prime Minister asked the
Lord Chancellor and the Home Secretary to conduct reviews of the
impact of the HRA. He also asked the Lord Chancellor to "devise
a strategy, working with the judiciary, which maintains the effectiveness
of the HRA, and improves the public's confidence in the legislation",
and asked the Home Secretary "to consider whether primary
legislation should be introduced to address the issue of court
rulings which overrule the government in a way that is inconsistent
with other EU countries' interpretation of the European Convention
on Human Rights." (paragraphs 1-2).
On 18 May the Joint Committee on Human Rights decided
to conduct an enquiry into "the case for the Human Rights
Act". In October 2006 we also decided to inquire into the
human rights implications of Home Office proposals drawing in
part on its internal review of the impact of the Human Rights
Act and the European Convention on Human Rights on decision making
in the criminal justice, immigration and asylum systems. We also
raised with the Home Secretary the Chahal judgment. We
took oral evidence from the Lord Chancellor and Baroness Scotland
on 30 October. The main purpose of this Report is to inform Parliament
about the Government's recent reviews of the Human Rights Act
(paragraphs 3-8).
Events giving rise to the Reviews
In our view, none of the three cases which sparked
controversy—the Afghani hijackers' judgment, the Anthony
Rice case and the failure to consider foreign prisoners for deportation—demonstrates
a clear need to consider amending the Human Rights Act. The Lord
Chancellor agrees and confirms it is the view of the Government
as a whole that none of them justifies amendment or repeal of
the HRA. We very much welcome the Lord Chancellor's assurance
that there is now an unequivocal commitment to the Human Rights
Act across the Government, but, in our view, public misunderstandings
will continue so long as very senior Ministers make unfounded
assertions about the Act and use it as a scapegoat for administrative
failings in their departments (paragraphs 9-41).
The DCA Review
We welcome the DCA Review which in our view makes
a fair and balanced contribution to the debate, and the Home Office's
unequivocal acceptance that the HRA has not impeded in any way
the Government's ability to protect the public against crime.
Although the Review does conclude that the HRA has had a impact
on the Government's counter-terrorism legislation, mainly because
of the Chahal case, we also welcome the Lord Chancellor's
conclusion that the HRA has not significantly inhibited the state's
ability to fight terrorism. We believe the Government has policy
options to counter the terrorist threat in a way compatible with
the UK's human rights obligations. We welcome the Lord Chancellor's
acceptance that the HRA has not had any adverse impact on the
Government's policy on immigration or asylum (paragraphs 42-48).
The DCA review records a significant beneficial effect
of the HRA on development of policy by Government. We welcome
the Review's acknowledgment of the importance of good guidance
on human rights compatibility in policy-making, the DCA's embrace
of a championing role in relation to human rights and its publication
of guidance for officials in public authorities. We also welcome
the Lord Chancellor's commitment to consult us on draft human
rights guidance in future (paragraphs 49-59).
The DCA Review concludes that the HRA has not significantly
altered the constitutional balance between Parliament, the Executive
and the Judiciary. We welcome the Lord Chancellor's acknowledgment
that it should be possible to give fuller reasons explaining the
Government's view of the compatibility with human rights obligations
of proposed new legislation. We favour a free-standing Human Rights
Memorandum based on the existing ECHR memorandum edited if necessary
to protect the Government's legal professional privilege (paragraphs
60-66).
The DCA Review states that the HRA has been widely
misunderstood by the public and seeks to debunk some myths. We
agree that there clearly exists a public perception that the HRA
protects only the undeserving, at the expense of the law-abiding
majority. We welcome the Review's proposal to be proactive in
debunking myths. In our view, the public's commitment to human
rights, and to the HRA, depends on wider dissemination of positive
examples the HRA is making in practice, e.g. for those in residential
homes, the disabled, carers and council tenants (paragraphs 67-80).
The DCA Review rules out withdrawing from the ECHR
or repealing the HRA but does not rule out amending the HRA. We
welcome the fact that the Lord Chancellor sees no current need
to amend the HRA as contemplated in the Review and are clear that
there is no need to amend the HRA or introduce specific legislation
to clarify that public safety comes first (paragraphs 81-85).
We asked the Lord Chancellor to consider primary
legislation to clarify the interpretation of "public authority"
under the HRA. Though not ruling out the possibility, he preferred
a case-by-case-approach. We were disappointed by the Government's
new concern about driving private providers out of the market
by widening the definition of "public authority". It
seems seriously at odds with the Government's avowed intention
elsewhere in the Review to make a positive case for the HRA. We
do not see insuperable obstacles to drafting a simple statutory
formula which makes clear that any person or body providing goods,
services or facilities to the public, pursuant to a contract with
a public authority, is a public authority for the specific purposes
of the HRA (paragraphs 86-92).
We were very surprised the DCA's "strategic
review" of 2004 on implementing the HRA has not been published
and welcome the Lord Chancellor's promise to think about making
a copy available confidentially to the Committee (paragraphs 93-96).
The Home Office Review
This Review has not been published. Baroness Scotland
drew our attention to the CJS Rebalancing Report. Most agencies
in the criminal justice system found the HRA helpful but also
identified a "risk-averse culture" based on a "sometimes
cautious interpretation" of the ECHR and HRA. But there are
few concrete examples. We welcome proposals for practical steps
to improve understanding of how to implement the HRA and for a
proactive approach to myth-busting. But in our view the Home Office
Review should be published. (paragraphs 97-107).
Rebalancing the Criminal Justice System
The premise of many of the Government's proposals
is that the HRA has led to public safety being treated as of less
importance than the human rights of terrorists or criminals, or
at least is perceived by the public to have had this effect. We
welcome the acceptance by Baroness Scotland that rebalancing must
not be unfair or unjust to the offender but better represent and
support victims. Our concerns about the Government's attempt to
overturn the Chahal case in the European Court of Human
Rights remain unalloyed. Attempting to distinguish between inhuman
and degrading treatment on the one hand and torture on the other
is unlikely to find favour, is unattractive and fails to solve
the Government's central problem. We welcome the Government's
recognition that there is a question whether the criminal justice
system contains any in-built discrimination on racial grounds.
We also welcome the Government's recognition that too many non-dangerous
people with mental health problems continue to be imprisoned (paragraphs
108-125).
Reforming the IND
We consider human rights issues raised by the Home
Secretary's proposals, notably over the intention to bring in
a presumption that various categories of foreign criminals will
be deported. We are concerned by the Prime Minister's announcement
of an automatic presumption of deportation, which raises the prospect
of deportation to a country where there is a real risk of treatment
contrary to Article 3 of the ECHR. On deportation of EU and EEA
nationals, we are also concerned that the Home Secretary may be
blaming the courts for something laid down by EU law. Finally,
Baroness Scotland assured us there was no racial profiling in
deciding IND activity on high risk routes (paragraphs 126-137).
Building a Human Rights Culture
We believe that a culture of respect for human rights
is a goal worth striving for. We see the DCA Review as an important
milestone in bringing one about. It cannot be achieved exclusively
through the courts, but needs shifts in public perception. This
in turn requires wider knowledge of the benefits of the HRA. But,
with the establishment of the Commission for Equality and Human
Rights pending, there remain unresolved questions about how far
a culture of human rights is developing. We will pursue these
issues during the remainder of this Parliament (paragraphs 138-146).
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