Independent Review of the Human Rights Act 1998 ~ Post 1

This post is the first 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 review

examined the operation of the Human Rights Act 1998 (the HRA) in two main areas:

1) the relationship between domestic courts and the European Court of Human Rights (the E Ct HR)

2) the impact of the HRA on relations between the judiciary, the government, and Parliament - (i.e. the constitutional balance).

The review report notes that it was a "fixed premise" that the UK would remain within the European Convention on Human Rights (the Convention). The review did NOT examine the substantive rights only the operation of the HRA and also, as required by the review's terms of reference, the extra-territorial application or jurisdiction of the HRA. The territorial reach of the Convention became a concern to the government in relation to military operations conducted abroad - e.g. Iraq and Afghanistan.

Consultations were held throughout the UK though many were "online" events because of the Covid pandemic. The panel received upwards of 150 responses and those may be seen at the IHRAR website -

https://www.gov.uk/guidance/independent-human-rights-act-review

The report claims that it has offered the government a "practical, coherent and sensible package of reforms to improve the operation of the HRA."

The remainder of this post is an overview of Chapter 1 of the report - Introduction - which essentially sets the scene, corrects some misunderstandings, and contains one recommendation. The Review makes recommendations on the basis that they "form the optimum approach to reform in relation to the HRA."

* Chapter 1 - Introduction *

Chapter 1 gives background information about the Convention and emphasizes that the Convention operates under the aegis of the Council of Europe and NOT the European Union. [Regrettably, some media articles continue to get this wrong]. The Council of Europe dates from the 1949 Treaty of London and currently has 49 member States.

Chapter 1 also notes that the HRA did not incorporate the Convention into domestic law although many commentators use that term - (see paras 21 and 28 of the report). The HRA created domestic rights as was made clear by Lord Hoffmann in Re McKerr [2004] UKHL 12.  The domestic rights created by the HRA are set out in the same terms as the rights set out in the Convention.

The HRA made it easier to assert those rights in domestic courts  and retained the E Ct HR as a "longstop" - (i.e. "Bringing Rights Home"). Under the Convention, the UK, as a signatory to the Convention, is the primary forum for protecting rights. This point is now written into the Convention (as amended by Protocol 15) -

"Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention"

Chapter 1 further notes the role of the judiciary in developing the common law and asserts that the "common law has protected individual rights for centuries."  That proposition is open to some debate  but it cannot be doubted that the common law has developed certain principles such as the necessity for government to have a legal basis for actions it takes.

The report sees a "safety valve built into the UK constitution where development of the common law is concerned" since any such development is "subject to the possibility of revision by Parliament through statute." 

"The matter is straightforward: Parliament may legislate to overrule common law developments by the courts or, indeed, set a different legislative direction."

Parliament cannot however legislate to alter the Convention. That has to be done via the Council of Europe and amendments have been made from time-to-time by the member states agreeing Protocols to the Convention.

Much of the importance of the HRA lies in what happens outside of courts and the Act should not be viewed just through the prism of certain high profile cases. [One might add here - certain cases disliked by politicians].

Chapter 1 draws to a close by noting that - "In some quarters, the HRA does not enjoy the level of settled public acceptance that it should command to be secure as an enduring feature of the UK's constitutional landscape." However, the importance of the HRA to devolution is noted very well at para 50 - "devolution considerations form part of the mainstream of IHRAR’s work. Such considerations are important due to the role that the HRA and Convention rights play in the legislative devolution arrangements in Scotland, Wales and Northern Ireland."

As for public understanding the report comments - "We are in little doubt that there is much room for increasing understanding of the UK’s constitution, and particularly, of the HRA, of the Convention and the ECtHR (not least, as noted above, that they originate from international obligations that pre-date and are entirely distinct from the UK’s former membership of the European Union), and the role of the Judiciary more generally."

At the end of Chapter 1 comes the first recommendation in the report which arises given the importance of public understanding -

" ..... the Panel recommends that serious consideration is given by Government to developing an effective programme of civic and constitutional education in schools, universities and adult education. Such a programme should, particularly, focus on questions about human rights, the balance to be struck between such rights, and individual responsibilities."

It remains to be seen what, if anything, that recommendation leads to. It does not receive a mention in the government' consultation document issued on 14 December.

Human Rights Act Reform: A Modern Bill of Rights - GOV.UK (www.gov.uk) - with link to consultation document (123 pages pdf)

A further post will look at the Review Report's further recommendations. After that it will be possible to assess fully the government's consultation document.

Continued HERE .....