The Government has announced that a panel of experts led by former Court of Appeal Judge, Sir Peter Gross, will conduct an Independent Human Rights Act Review (the “IHRAR”). The Human Rights Act 1998 (the “HRA”) incorporates the fundamental rights and freedoms set out in the European Convention on Human Rights (the “Convention”) into domestic British law. The purpose of the review is to consider whether there is a need to reform the HRA. The Panel will take “a fresh look at the [HRA] – how it operates and protects human rights – to ensure it continues to meet the needs of the society it serves”.

Context

The 2019 Conservative Manifesto was not the first Conservative manifesto to make reference to the HRA. The 2017 Conservative Manifesto committed to “consider” the human rights legal framework after Britain had left the European Union, whereas the 2015 Conservative Manifesto promised to “scrap” the HRA, introduce a Bill of Rights and “curtail” the role of the European Court of Human Rights (the “ECtHR”). Therefore, it was foreseeable that a prospective Conservative government in 2019 would also make a commitment in respect of the human rights framework. The 2019 Conservative Manifesto promised to “update” the HRA.

Terms of Reference

The Terms of Reference of the IHRAR refer to the United Kingdom’s contribution to human rights law, which it states is founded in the common law tradition and continued with the drafting of the Convention. Citing the impact which the HRA has had on relations between the judiciary, the legislature and the executive and the “perception” that, under the HRA, the courts have increasingly been presented with questions of policy as well as law, the Government considers that it is timely to review the operation of the HRA.

There are two overarching themes that the IHRAR will consider:

  1. The relationship between the domestic courts and the ECtHR: Domestic courts and tribunals are not bound by the jurisprudence of the ECtHR. However, pursuant to section 2 of the HRA, in so far as relevant, domestic courts and tribunals must “take into account” that jurisprudence when determining a question that has arisen in connection with a Convention right. The Panel will consider (among other questions):
    1. How the duty under section 2 has been applied in practice?
    2. How have domestic courts and tribunals dealt with issues falling within the margin of appreciation? When applied, this legal doctrine gives a public authority a degree of discretion when making decisions.
    3. Does the current approach to ‘judicial dialogue’ between domestic courts and the ECtHR satisfactorily allow domestic courts to raise concerns as to the application of ECtHR jurisprudence, having regard to the circumstances of the United Kingdom?
  2. The impact of the HRA on the relationship between the judiciary, the executive and the legislature: The Panel will consider whether the HRA balances those roles, including whether there is “over-judicialising” of public administration, drawing domestic courts unduly into questions of policy. By way of illustration, these are examples of questions that the Panel will consider:
    1. Section 3 of the HRA requires the courts to read and give effect to primary and subordinate legislation in a way which is compatible with Convention rights. Should any changes be made to this framework?
    2. Should any change be made to the framework of the section 4 HRA duty i.e. that if the court is satisfied that a provision is incompatible with a Convention right, it may make a declaration of that incompatibility?
    3. How have courts and tribunals dealt with provisions of subordinate legislation that are incompatible with the HRA Convention rights?
    4. In what circumstances does the HRA apply to acts of public authorities taking place outside the territory of the United Kingdom?
    5. Section 10 of and Schedule 2 of the HRA provide ministers with the power to make remedial orders, i.e. to amend legislation that has been found incompatible with the Convention. Should this be modified, for example by enhancing the role of Parliament?

The IHRAR will not consider potential changes to the operation of the Convention or the ECtHR, which are not within the scope of this Review.

Next steps

The Panel is expected to report its recommendations in Summer 2021, after which the Government will respond to the report.

A further point to note is that the 2019 Conservative Manifesto also promised to review the constitution and administrative law, including the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; access to justice and judicial review. The 2019 Conservative Manifesto undertook to establish a Constitution, Democracy and Rights Commission to consider these issues, as well as the HRA, in depth.

On 31 July 2020, the Government established the Independent Review of Administrative Law (the “IRAL”) to consider options for reform to judicial review. In its latest announcement the Government has stated that the IRAL and the IHRAR, together with other workstreams which will be announced in due course, will deliver the Commission on Constitution, Democracy and Rights. Therefore, it is likely that we will see further reviews taking place to address remaining constitutional issues referred to in the 2019 Manifesto.

To read more about the IRAL, please see the following blog posts:

 

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Shameem Ahmad
Shameem Ahmad
Associate
+44 20 7466 2621