15/12/2021

Independent Human Rights Act Review delivers its report

The Independent Human Rights Act Review (IHRAR), chaired by Sir Peter Gross, has delivered its report, laid in Parliament yesterday. The press release distributed by the IHRAR is below.

 

The Human Rights Act – a coherent package of reform to improve its working

Press release: 14  December 2021

The Independent Human Rights Act Review (IHRAR) has reported and today, the Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice, the Rt Hon Dominic Raab MP, laid the Panel’s report in parliament.

Sir Peter Gross, Chairman of the Review Panel said:

“This report recommends a coherent package of reforms to the Human Rights Act, putting our common law and case law centre stage. I urge the Government to implement them in full.”

“The reforms are designed to improve how the HRA operates, both domestically across the UK, and, in the UK Courts’ relationship with the European Court of Human Rights. Otherwise, it is our view that the Human Rights Act works well and has benefited many.”

You can find the executive summary here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040526/ihrar-executive-summary.pdf

You can find the full report here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040525/ihrar-final-report.pdf

Summary of the key points:

The European Convention on Human Rights (The Convention)

The UK’s contribution to human rights law is immense. It is founded in the common law tradition, dating back centuries. Part of that contribution was the instrumental role the UK took in the drafting and promoting the Convention, to which the UK acceded in 1951.

The Convention came into being in the wake of the Second World War, to avoid further human rights abuses in Europe. It is entirely separate from and has nothing to do with the European Union, which the UK joined subsequently in 1972. The UK remains and intends to remain a party to the Convention, even though it has left the EU.

The Human Rights Act (HRA) 1998

The HRA was passed by Parliament in 1998. It was, primarily, intended to enable individuals to protect their Convention (human) rights in UK Courts, while enabling UK courts to make a distinctive British contribution to the development of human rights law in the Strasbourg Court. The HRA ensures, however, that Parliament remains supreme.

We have seen, from the tremendous response to the IHRAR, just how important the HRA is to so many people from so many walks of life. It has had a significant beneficial impact across society. It is right, however, that after twenty years, how it operates should be reviewed.

The Independent Human Rights Act Review 

In 2020, the Government set up IHRAR, chaired by a former Court of Appeal Judge, Sir Peter Gross, with an independent Panel, to conduct an independent and thorough review of the workings of the HRA. Its terms of reference were carefully limited to the workings of the HRA – not the substantive rights in the Convention.

IHRAR took an evidence-based approach and considered the HRA without preconceptions. It consulted widely and received over 150 submissions from the widest spectrum of views. It also undertook fourteen roundtables and seven roadshows, together with meetings with the Strasbourg Court, the Irish Supreme Court and the German Constitutional Court.

IHRAR has worked transparently throughout; the submissions and minutes or recordings of the roundtables and roadshows are on its webpage:

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

Where IHRAR’s report reflects a majority view, rather than unanimity, this is made clear in the report’s Executive Summary and the report itself.

IHRAR’s proposed reforms

IHRAR recommends a coherent package of reforms intended to improve the way the HRA operates, in essence, as follows:

• Increase knowledge and awareness – develop an effective programme of civic and human rights l education for all.
• Put the common law, UK case law and domestic legislation centre stage to ensure priority is consistently given to domestic rights protection before consideration is given to Convention rights. This will also strengthen both domestic support for the HRA and maintain the mature equilibrium reached between UK Courts and the Strasbourg Court. Section 2.
• Encourage Judicial dialogue – ensure continued mutually beneficial formal and informal dialogue and communication between the UK and Strasbourg judiciaries.
• Defuse concerns about the controversial rule of interpretation in the HRA by ensuring priority is given consistently to normal rules of interpretation and increasing transparency and Parliamentary scrutiny of its use. Section 3
• Increased transparency where UK Courts decide cases relying upon the section 3 rule of interpretation and where they make quashing orders, through the creation of an official judgments database.
• Introduce a discretion to make ex gratia payments where a declaration of incompatibility is made. Section 4.
• Increase Parliamentary scrutiny of human rights decisions by UK courts through an enhanced role for the Parliamentary Joint Committee on Human Rights. Sections 3 and 4.
• Introduce suspended quashing orders – amend the HRA to enable UK Courts to make suspended quashing orders, so aligning this area of the law with proposed changes to Judicial Review generally,  and addressing a particular need in the case of Designated Derogation Orders made under section 14 of the HRA (in times of national emergency).
• Propose a national conversation and inter-governmental discussions on the extra-territorial scope of the Convention and the HRA – the Review Panel is persuaded that there is a problem with the direction taken by Strasbourg case law in this area; however, uniliteral action by the UK risks damaging vital UK interests and is therefore best avoided. Steps should be taken by the UK government to bring forward a national debate and inter-governmental dialogue with the other countries that are party to the Convention to consider how best to reform the Convention. HRA reform will best be taken after such action. Similar concerns exist in respect of the Convention’s and HRA’s temporal scope.
• Amend remedial orders so that a Henry VIII power cannot be used to amend the HRA itself. The Parliamentary Joint Committee on Human Rights to consider whether Parliamentary involvement in remedial orders is adequate generally. Section 10.

Contact: Anne Power at annempower@gmail.com for any questions you may have.