Should we reform the Human Rights Act?

Not if anyone is relying on yesterday’s evidence to a parliamentary committee

I gave evidence yesterday to parliament’s Joint Committee on Human Rights about the Independent Human Rights Act Review chaired by Sir Peter Gross. The review is expected to present a series of options (rather than recommendations) to the lord chancellor in September.

The other witnesses were:

• Helen Mountfield QC, Matrix Chambers

• Richard Hermer QC, Matrix Chambers

• Professor Graham Gee, Professor of Public Law, the University of Sheffield

It was a fascinating couple of hours and I learned a lot from my fellow speakers. A transcript will be published in due course. In the meantime, here is a recording of the full session:

The committee is chaired by Harriet Harman QC MP (Labour).

Also present were:

• Lord Brabazon of Tara DL (Conservative)

• Karen Buck MP (Labour)

• Joanna Cherry QC MP (SNP)

• Lord Dubs (Labour)

• Lord Henley (Conservative)

• Baroness Ludford (LibDem)

• Baroness Massey of Darwen (Labour)

• Lord Singh of Wimbledon CBE (crossbench)

And here are some of the questions we were asked:

• What impact has the Human Rights Act had on the enforcement of human rights in the UK?

• In your view, has the Human Rights Act had any impact on parliamentary sovereignty beyond that intended by parliament? Has the act, its use or interpretation by the courts served to constrain parliament in any way?

• Do you think that the Human Rights Act strikes the right balance between enabling individuals to enforce their rights and effective government?

• The independent review asks whether any change is required to how courts and tribunals have dealt with provisions of subordinate legislation that are incompatible with convention rights. Do you consider that the current system is problematic?  What would be the advantages and disadvantages of any changes?

• Has the requirement under section 2 of the Human Rights Act to “take into account” European Court of Human Rights jurisprudence made it easier for individuals to enforce their rights in the domestic courts?

• Do you think seeing the reasoning of UK courts in human rights cases helps the European Court of Human Rights to understand UK laws? Does this have an impact on the likelihood of an adverse finding against the UK?

• Previous governments have established reviews of the Human Rights Act which have not led to credible proposals for reform. Do you think a further review is necessary at this point? Is there reason to think it will lead to reform this time?

• The review asks what remedies should be available to the domestic courts when considering challenges to designated derogation orders under section 14(1) of the Human Rights Act. Is this an issue that has caused any problems to date? What would be the effect of limiting the courts’ ability to grant relief in such challenges?

• It is now settled case-law that the Convention can have extra-territorial effect in exceptional circumstances. In circumstances where it is not possible to comply with specific rights in overseas military operations, the Government can derogate in accordance with Article 15 ECHR. In light of this, is there a case for further limiting the ability of individuals whose human rights have been breached to have their cases determined by UK Courts?  What are the advantages and disadvantages of such a move?

• The UK has accepted a legally binding obligation to “secure to everyone” within its jurisdiction the rights protected by the Convention and has undertaken to provide an effective remedy in cases of a breach. Do you think that it would be possible to place territorial limits on the application of the Human Rights Act in a way that was compatible with these commitments? If not, would a separate system of enforcement be required for those whose human rights have been abused by the State overseas? Would there be any advantage to this approach?

• We have taken evidence from witnesses with wide ranging experience of the operation of the Human Rights Act, and there has been a clear consensus that it works well in practice. Do you think the problem is really one of perception among those less familiar with the Act? Would there be merit in the government taking measures to address and correct misconceptions, rather than founding proposals for reform on them?