This post is the third in my look at the Independent Review of the Human Rights Act 1998.
The review was commissioned by the Secretary of State for Justice (then Robert Buckland QC MP) on 7 December 2020 and was conducted by a panel of 8 including the Chair - former Lord Justice of Appeal, Sir Peter Gross. Their report - finally revealed by the Secretary of State for Justice (now Dominic Raab MP) on 14 December 2021 - extends to 580 pages.
Independent Review of Human Rights Act 1998 - report - (580 pages pdf)
The post is an overview of Chapter 5 of the report - Sections 3 and 4 of the Human Rights Act 1998
What are Sections 3 and 4:
Section 3(1) provides - So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
Hence, the courts are required to read legislation in a way which is compatible with convention rights BUT only "so far as it is possible to do so"
If it is not possible to do that then section 4(2) provides - If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
Therefore if the court considers something in legislation to be incompatible with a convention right then the court MAY - does not have to - make a declaration of incompatibility. (NB: only the courts specified in section 4(5) are permitted to do this).
If a declaration of incompatibility is made, section 4(6) provides that the declaration (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.
In this way, the HRA did not enable UK courts to "strike down" legislation. Rather, a signal is sent to the government and Ministers that the court considers the legislation to be incompatible and it is then for Ministers or Parliament to take action, if they so decide, to correct the incompatibility.
Section 10 of the HRA provides a mechanism for removing incompatibility - i.e. remedial orders. Section 10(2) states - if a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.
Remedial Orders are the topic of Chapter 9 of the report. The report recommends an amendment to section 10 of the HRA to clarify that remedial orders cannot be used to amend the HRA itself and improve parliamentary scrutiny of remedial orders.
Annex X to the report contains a list of cases in which declarations of incompatibility have been made - 34 cases in the 21 years of operation of the HRA. In many instances, remedial orders followed.
Section 19:
The report contains some discussion of section 19 HRA which requires the Minister in charge of a Bill to either state in writing whether or nor in his view the provisions in a Bill are compatible with convention rights. Such statements indicate to the courts whether the government and Parliament intend the legislation to be incompatible.
The Report:
Chapter 5 discusses in detail the Parliamentary debates prior to the enactment of the HRA.
The approach of the courts to section 3 is then examined and the approach has developed from the early days of R v A [2001] UKHL 25 to the modern approach stemming from Ghaidan v Godin-Mendoza [2004] UKHL 30.
The report comments (Chapter 5 para 81) that there is "no real evidence to suggest that the UK courts have adopted an approach that arguably misuses section 3 and the intention underpinning it."
Regarding section 4 (whether to make a declaration), the courts do not have to make a declaration even where they have found an incompatibility and they have been very cautious about doing so. This useful Table appears in the report -
The Panel found no support for courts to make more declarations.
The Panel also noted (para 116) that there is no mechanism in section 3 to inform the government or Parliament when UK courts interpret legislation under section 3. This is in contrast to use of section 4.
A number of suggested reforms were rejected - see paras. 123, 130, 131, 135, 138, 144, 149, 152, 155, 159, 162 and 163. Some potential reforms were considered but not recommended - paras. 173 and 176.
The Panel did recommend:
- No change to the substantive content of sections 3 and 4
- Clarification the priority of interpretation
- Greater transparency concerning use of section 3 via a judgments database
- An enhanced role for Parliament - especially the Joint Committee on Human Rights
- An ex gratia payment mechanism for use when a declaration of incompatibility is made (para 203). This would be payable by the government. Such an approach is taken in Ireland.
The report puts forward this possible draft for amending section 3
Continued HERE .....
22 December 2021
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