The Human Rights Act is under review

The UK government have launched a review of how the Human Rights Act (HRA) is operating, 20 years after the HRA was brought into force. The review will be conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge. The review can take information and evidence from any source and hopes to report in July 2021.

Terms of Reference

The scope of the review will focus on two overarching themes regarding the framework of the HRA.

Firstly, the relationship between domestic courts and the European Court of Human Rights (ECtHR). The Review will consider questions in relation to this theme which focus on how the duty to “take into account” ECtHR jurisprudence has been applied in practice and the current approach to ‘judicial dialogue’ between domestic courts and the ECtHR. A question is raised as to how such dialogue can be strengthened and preserved.

Secondly, the impact of the HRA on the relationship between the judiciary, the executive and the legislature. The Review will consider the way the HRA balances those roles, including whether the current approach risks “over-judicialising” public administration and draws domestic courts unduly into questions of policy. Here there are a series of questions focussing on whether parliament’s role should be strengthened.

On reflecting on these themes the panel will look at how the framework is operating and how the HRA could best be amended.

What the review is not looking at

The review is looking at the Human Rights Act. Falling outside of the scope of the review are any potential changes to the operation of the European Convention on Human Rights or the ECtHR.

What has Brexit got to do with it?

Brexit and the UK’s withdrawal from the European Union does not alter the operation of the Human Rights Act or the rights of UK citizens under the European Convention of Human Rights. It is hoped that the review will dispel any misconceptions that Brexit has altered the rights under the Human Rights Act. The revised Political Declaration setting out the framework for the future relationship between the EU and the UK, of October 2019, sets out “core values and rights” as a basis for cooperation. It states that the future relationship should incorporate the UK’s continued commitment to “respect the framework” of the ECHR.

Examples of cases that relied on the Human Rights Act

Families affected by the scandal at the Mid-Staffordshire NHS Trust used the Human Rights Act. The first report into Stafford Hospital estimated that as many as 1,200 people had died unnecessarily at the hospital between 2005 and 2008 due to the “appalling” standards of care provided. The families were able to rely on the investigative obligation under the Human Rights Act as relatives’ lives were lost. This requires public authorities to ensure there is a proper inquiry, involving the relatives. They were able to use the act to force the government to hold a thorough public inquiry into what went wrong, which made numerous recommendations to prevent anything similar happening elsewhere. Some relatives used the Human Rights Act to ensure proper inquests were held to uncover the truth about what happened.

In the Cheshire-West case in 2015 a young man’s mother went to the Supreme Court. She used the Human Rights Act to successfully argue that her son was being deprived of his liberty. She called for protections to be put in place for her son and other people in his position, so that their care regimes are regularly reviewed. All disabled adults in care are now entitled to the same dignity and status as the rest of us. This means regular reviews to ensure their best interests and needs are being taken into account.

In the case of Ghaidan v Godin-Mendoza, a man living in a London flat successfully argued in court that he should succeed his gay partner’s tenancy for the home that they lived in. His landlord had refused and would not have been able to do so if he was in a heterosexual relationship. The judges said such discrimination was no longer acceptable because of the Human Rights Act.

The parents of Tafida Raqeeb, a child whose parents sought to move her out of hospital for life saving treatment at another hospital in 2019, used the Human Rights Act to successfully argue their case. The outcome o the case was that the court declared it was in the child’s best interest to continue receiving life sustaining treatment.

Can I still make a claim in the European Court of Human Rights?

The jurisdiction of the ECtHR has not altered. It remains the case that individuals can claim a remedy for breaches of their Convention rights in the UK courts. An individual who thinks that his or her Convention rights have not been respected by a decision of a UK court may still bring a claim before the ECtHR, but they must first try their appeal in the UK courts. It is the duty of all such courts, including the UK Supreme Court, to interpret all existing legislation so that it is compatible with the ECHR; so far as it is possible to do so. If the court decides it is not possible to interpret legislation so that it is compatible with the Convention it will issue a 'declaration of incompatibility'.

The European Court of Human Rights is an international court based in Strasbourg, France. It consists of a number of judges equal to the number of member States of the Council of Europe that have ratified the European Convention of Human Rights. The Court’s judges sit in their individual capacity and do not represent any State. In dealing with applications, the Court is assisted by a Registry consisting mainly of lawyers from all the member States (who are also known as legal secretaries). They are entirely independent of their country of origin and do not represent either applicants or States.

Will our rights or access to justice under the Human Rights Act be watered down?

Many citizens, such as residents of care homes and their families, have positively benefited from cases relying on the Human Rights Act. As long as the independent panel fairly consider the wide range of views and evidence available they will clearly see the real positive impacts of ‘bringing rights home’ so that any recommendations continue to allow citizens to rely on these important rights and British judges can deliver justice. Watering down citizen’s rights or access to justice should not be an option.

If you think you may have a claim under the human rights act, our expert human rights team of solicitors is here to support you. You can find more information about the team and our cases here 

An individual who thinks that his or her Convention rights have not been respected by a decision of a UK court may still bring a claim before the ECtHR, but they must first try their appeal in the UK courts.”