It has emerged that the UK Government has appointed a panel to review the operation of the Human Rights Act 1998 (“HRA”). The act was adopted more than 20 years ago, and was aimed at extending the protection of rights under the European Convention on Human Rights (“ECHR”) to UK domestic law. Over the years, it has been the subject of intense political debate, not least because human rights are often cited in judicial review proceedings challenging decisions of government departments, and the general reluctance of such departments to concede if found to have been acting unlawfully. While some political parties went as far as pledging to repeal the HRA in their respective election manifestos, the Government has now suggested that it is only intending to review the use of the act by the courts, and has appointed a panel of experts to do so.
The UK ratified the ECHR back in 1950, in the years after the end of the Second World War. The purpose behind the Council of Europe’s adoption of the ECHR in the first place was the future prevention of atrocities that the world had seen during the war by ensuring that the signatories to the Convention were bound under international law to provide for the basic protection of human rights. Since 1965, it has become possible for individuals in the UK to petition the European Court of Human Rights (“ECtHR”) if they thought that this country had violated that person’s human rights. Whilst Parliament enacted legislation which provided for the UK’s international law obligations to uphold Convention rights, the operation of the doctrine of parliamentary sovereignty still left open the possibility of Parliament passing laws which were directly or indirectly incompatible with those rights. It was therefore believed that a specific human rights act was needed, not as a means of restricting Parliament’s ability to make law, but as a mechanism by which to raise awareness of potential human rights violations within the UK’s legislative process.
Following the introduction of the HRA, it became more difficult for Parliament to adopt legislation that would breach human rights. It is now the case that a Government minister is required by law to make a statement at the outset of the legislative process that the proposed bill is compatible with Convention rights. Although it is open to the minister to state that the bill is not compatible, this would not impact the validity of the bill or prevent it from being debated and thereafter potentially becoming law. What the requirement to make this statement does is to highlight the issue of incompatibility, which would then allow for the necessary debate to take place. Moreover, the Joint Committee on Human Rights also plays a role in highlighting any failure to adhere to Convention rights. It is therefore more likely that any proposed clauses infringing human rights would either be voted down during the bill’s passage through Parliament, or the entire bill would ultimately be abandoned as unsuitable for primary legislation.
Another feature introduced by the HRA is the requirement for the courts to interpret any primary legislation in a manner that is compatible with Convention rights. If it is not possible to do so, certain courts are empowered to issue a declaration of incompatibility by stating that a certain provision is not consistent with a specific Convention right. The legal effect of this is fairly limited, and it does not make the relevant provision invalid or unlawful. This is because the UK courts are not empowered to override the will of Parliament. In fact, the issuing of such a declaration of incompatibility only triggers a ministerial power to rectify any breach by way of secondary legislation. There is no obligation on the minister to do so, however, with the court’s declaration effectively imposing only a moral duty on the relevant minister to tackle the human rights violation identified. Moreover, the courts are unlikely to issue a declaration of incompatibility if doing so would place them outside of what they perceive to be their permitted constitutional boundaries, given the separation and independence of the legislature and the judiciary. The HRA is therefore consistent with the doctrine of parliamentary sovereignty in that it does not purport to suggest that any primary legislation adopted by Parliament in breach of human rights must be struck down.
A more contentious issue introduced by the HRA is the requirement for any public body to act in accordance with Convention rights unless primary legislation provides otherwise. This has significantly broadened the scope of judicial review proceedings which may be taken against a decision made by the executive. The HRA also intensified the judicial review process by introducing the proportionality test, which has its origins in German jurisprudence and is widely used by the ECtHR. The test was adopted in judicial review proceedings as a tool for determining the legality of any restrictions to qualified rights. Due to the fact that this had the effect of increasing scrutiny of decisions made by government departments, it can be argued that the proposed reforms are aimed at restricting or even reversing the powers that the HRA conferred on the courts.
The latest move to review the HRA should be considered together with a separate review that is currently being conducted by the Government in relation to judicial review proceedings and the proposed reform of the UK Supreme Court. Whilst various legitimate reasons may be provided to justify these proposals, their effect is designed ultimately to loosen the checks that are currently in place for challenging decisions of the executive. The reforms to the Supreme Court are currently at the proposal stage (as reviewed in a previous blog). The judicial review reforms, however, have passed the consultation stage, with the Government due to report by the end of the year. It is understood that lawyers specialising in administrative law have expressed concerns over the Government’s intentions to curtail the powers of judges to review its decisions. It could be argued that the Government is pursuing a similar agenda with its reviewing of the HRA, with the intention of taking another step towards having fewer checks on the power of the executive.
It is understood that the Government has appointed Sir Peter Gross as chairman of the panel to review the operation of the HRA. He has been quoted as saying: “The [HRA] constitutes a most important part of our legal framework; [the panel] will entail an independent process of careful reflection to consider its workings, together with whether and, if so, what, reforms might be justified”. The truth is that the HRA has been politicised over the years by many successive governments, and the current Government is known for its aspirations to have as few checks on its decision-making as possible. Whilst the tone of the message justifying the review may appear benevolent, it is the combination of these two factors that is actually alarming and clearly not supportive of the UK’s international image as an ardent proponent of human rights.
The panel is due to report on its findings in due course.
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