In December 2020, the Government announced an independent review to examine the framework of the Human Rights Act 1998 (the “HRA”), how it is operating in practice and whether any change is required (the Independent Human Rights Act Review). The Review is focused on two themes:
- the relationship between the domestic courts and the European Court of Human Rights; and
- the impact of the HRA on the relationship between the judiciary, the executive and the legislature.
JUSTICE have submitted a response to the Review’s Call for Evidence. Our response was shaped by an advisory group, chaired by Sir Michael Tugendhat and comprised of the following members:
- Professor Brice Dickson, Queen’s University Belfast;
- Tessa Gregory, Partner, Leigh Day LLP;
- Dominic Grieve QC, Temple Garden Chambers;
- Raza Husain QC, Matrix Chambers;
- Jennifer McDermott, former head of Media and Public Law at Withers LLP, Addleshaw Goddard LLP and Hogan Lovells LLP;
- Jonathan Moffett QC, 11KBW;
- Christine O’Neill QC, Partner and Chairman of Brodies LLP; and
- Alison Young, Sir David Williams Professor of Public Law, University of Cambridge.
In our response we highlighted that despite the diverse experience of our advisory group members, there is a strong consensus that the HRA in its current form functions very well. The HRA is a well-crafted delicately balanced piece of legislation. It enables the courts to give effect to and protect the rights of individuals whilst maintaining Parliamentary sovereignty and the balance between the different branches of Government. The advisory group is unanimous that there is no need to amend the HRA (bar some minor amendments to the use of remedial orders). Given the Government’s welcome commitment to remaining a party to the European Convention on Human Rights, there is little scope for any amendment of the HRA without putting the UK in breach of its international obligations, or risking an increase in cases involving the UK before the European Court of Human Rights (“ECtHR”). Amending the HRA would also risk:
- reducing the dialogue between the ECtHR and the domestic courts, limiting the UK’s ability to influence the ECtHR’s approach and enhance its understanding of UK domestic law;
- creating a lack of legal certainty and clarity as to the operation of any proposed changes and the impact those would have on the position and development of the common law;
- impacting the devolution settlements and peace process in Northern Ireland; and
- exposing British troops to investigation and prosecution at the International Criminal Court.