Is The Human Rights Act About To Be Overhauled?

At the recent Conservative Party Conference in Manchester, Justice Secretary Dominic Raab left little doubt that he has the Human Rights Act 1998 in his sights for reform; he told the conference, “It is absolutely perverse that someone guilty of domestic abuse then claims the right to family life to trump the public’s interest in deporting him from this country. We’ve got to bring an end to that nonsense… Before the next election, we will overhaul the Human Rights Act – to end this kind of abuse of the system and restore some common sense to our justice system.”

Independent Review of the Human Rights Act

Back in December 2020, the Government launched an Independent Review of the Human Rights Act (the Act), led by former Court of Appeal Judge Sir Peter Gross. The findings of the review are not yet available, but it is likely that these will steer the future direction of the Act. According to the Government’s press release, the review was set up to specifically look at:

  • The relationship between the domestic courts and the European Court of Human Rights (ECtHR). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
  • The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
  • The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.

Mr Raab told a Tory conference fringe event hosted by the Spectator magazine that he hoped to bring about reform of the Act without the UK leaving the European Convention on Human Rights; he told those attending, “It’s the way it has been interpreted, in particular the licence given to courts to adopt through judicial legislation ever more elastic interpretation of rights…We can fix that and assert human rights in a positive way to end abuses of the system, but I don’t think we need to pull out of the European Convention on Human Rights”.

Joint Committee of Human Rights publish their own assessment of the Act

In July 2021, the Joint Committee on Human Rights (JCHR) also published its own assessment of the questions, which will be considered by the Independent Review. The JCHR did not mince their words, stating, “To amend the Human Rights Act would be a huge risk, to our constitutional settlement and to the enforcement of our rights”. They point out that contrary to what has been stated by Mr Raab, the Act, which incorporates the European Convention on Human Rights into UK legislation, does not “unduly constrain” the courts in this country and that it requires relevant factors, including ECtHR judgments, to be taken into account (as per section 2); Section 2 of the Act states:

“A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention”.

The JCHR also point out that the Act is designed as a way of ensuring parliamentary sovereignty through Sections 3 and 4. Section 3 ensures that the Act is read in a manner that is compatible with the European Convention on Human Rights. And Section 4 makes sure that if this is not possible, the court can say they are incompatible. Where incompatibilities are found, the Government then have the opportunity to propose amendments. As the JCHR explain, “Where secondary legislation is found to be incompatible with ECHR rights, the Courts can strike it down, but this is an appropriate check on the power of the executive rather than a challenge to parliamentary sovereignty. Whilst the Courts may challenge the Government, they do so in a way which is consistent with the wishes of Parliament”.

Final words

While the Government may cite human rights cases involving criminals and those found guilty of domestic abuse who used the Act to avoid deportation as a means for wholesale change, this is not the case for the large majority for whom this law is vital to their protection and security. It is not yet clear to what extent they will seek to alter the Human Rights Act 1998 and whether such changes will gain full support in Parliament.

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