Select Committee on Constitution Sixth Report


Joint Committee On Human Rights Thirty-Second Report (2005-06): The Human Rights Act: the DCA and Home Office Reviews



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or the way it was being interpreted, was preventing the Government from ensuring public safety, and that it should be repealed or amended.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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