Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘Human Rights Act

Review of the Human Rights Act 1998: latest news

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Following the announcement of this review, chaired by Sir Peter Gross, in December 2020, the review has now published its call for evidence, together with the membership of the team who will be assisting Sir Peter in his review.

Evidence is sought on two specific issues:

The first deals with the relationship between domestic courts and the European Court of Human Rights (ECtHR), in particular how the requirement that domestic courts ‘take into account’ decisions of the ECtHR.

The second seeks evidence on the impact of the HRA on the relationship between the judiciary, the executive and the legislature.

The time for responding is short. Submissions have to be in by 7 March 2021.

The Review promises that there will be public consultation sessions to be arranged. The intention is that the report should be submitted to Government in Summer 2021.

Details are at https://www.gov.uk/guidance/independent-human-rights-act-review#contents

Written by lwtmp

February 1, 2021 at 11:42 am

Responding to Human Rights Judgments: 2019 to 2020 – new report

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Just a few days ago (18 December 2020) I noted the establishment of the Independent Review of the Human Rights Act 1998, to be chaired by Sir Peter Gross. One of the documents the review will, have to consider is the latest report by the Government to the Joint Committee (of the House of Lords and the House of Commons) on how it has been responding to judgements of the European Court of Human Rights (ECtHR). Despite its title, it covers a longer period than 2019-2020. Indeed, it provides important background on how the European Convention on Human Rights impacts on the UK.

What strikes me is, that while there have undoubtedly been a small number of controversial cases that have gone to the ECtHR over the last 20 years, the overall impact has been much more limited than many of the stories in the print media might suggest.

It is striking to see that the numbers of cases against the UK Government is actually very small – and many of the cases started are dismissed as disclosing no cause of action.

In the small number of cases which go against the UK Government, the outcomes of the Court seem to me sensible and balanced. (The low numbers may reflect the fact that, as a result of the enactment of the Human Rights Act 1998, it is easier to argue Convention issues in the UK courts than it used to be.)

Even where cases are taken in the UK Courts, the numbers of declarations of incompatibility made by the UK courts are also very small, and most being dealt with by changes to regulations rather than major legislative changes.

The report is available at https://www.gov.uk/government/publications/responding-to-human-rights-judgments-2019-to-2020

Written by lwtmp

December 22, 2020 at 4:08 pm

Review of the Human Rights Act 1998

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In its Election Manifesto for 2019 the Conservative Party announced that it wished to review the operation of the Human Rights Act 1998.

For a number of years, some politicians had been argung for a repeal of the act and its possible replacement with a ‘British Bill of Rights’. That idea never gained broad political support and seems to have fallen away. Certainly the announcement, on December 7 2020, of the current review states, in terms, that the Government remains committed to the European Convention on Human Rights.

According to the official announcement, the new review – chaired by retired Court of Appeal judge, Sir Peter Gross – has the following tasks. It will consider:

  • 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.

The review is stated to be limited to looking at the structural framework of the Human Rights Act, rather than the rights themselves.

The announcement of the review also says that the new review ‘runs alongside’ the independent review of Judicial Review and ‘is part of the government’s work to deliver the commitment in the Manifesto to look at the broader aspects of the constitution and the relationship between the Government, Parliament and the courts’.

It seems that these 2 reviews, taken with ‘others to be announced in due course’ will deliver the ‘Commission on Constitution, Democracy, and Rights’ which the Government said it wished to establish. It is not at all clear whether there will be a separate Commission, or whether these separate reviews will, in some way, be welded together into some kind of final statement of policy. I would have thought that a distinct Commission would be essential to ensure that the outcomes from specific reviews were coherent.

The announcement of the HRA review is at https://www.gov.uk/government/news/government-launches-independent-review-of-the-human-rights-act

I noted the review of judicial review at https://martinpartington.com/2020/08/07/independent-review-of-administrative-law/. See also https://martinpartington.com/2020/11/04/collection-of-responses-to-the-independent-review-of-administrative-law-iral/

Written by lwtmp

December 18, 2020 at 11:17 am

Law for Lawmakers: A JUSTICE guide to the law

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JUSTICE has recently published Law for Lawmakers, a short introduction to some key legal and constitutional principles confronted by MPs, Peers and their staff in their work. This guide is designed to provide basic information and signposts to sources of legal advice and support.

Whilst the legal profession is well-represented in politics it has never dominated the House of Commons. For example, of Parliament’s 650 current MPs, only 88 practise law in England and Wales. As the makers of our laws, as our representatives, and in holding the Government to account, MPs and Peers wear many hats. Each of these roles requires MPs to grapple with the law every day. However, for over three-quarters of all first-time MPs this may be a very new experience.

This Parliament is set to consider constitutional questions ranging from the scope of surveillance powers for the security services to the withdrawal of the UK from the European Union; from a new devolution settlement for the Union to the repeal of the Human Rights Act 1998.

The JUSTICE guide doesn’t set out to answer those questions, but it may help to inform discussion and debate.

The guide may be found and downloaded at http://justice.org.uk/law-for-lawmakers-a-justice-guide-to-the-law/
It is an ideal introduction to the law-making process for all who are interested, not just MPs.

Written by lwtmp

October 16, 2015 at 12:12 pm

Where next for Human Rights?

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Much publicity has been given to the publication of proposals from the Conservative Party to, in some way, opt out of the European Convention, or more particularly judgements of the European Court of Human Rights.

I was unable to track the paper down through the Conservative Party website, but it can be accessed from the BBC News website at http://www.bbc.co.uk/news/uk-politics-29466113.

The proposals are controversial and have already generated heated debate. A key issue, which has not had the air-time it deserves, is what message any such move by the UK Government would have on the other 46 states who are also members of the Council of Europe and who are signed up to the European Convention on Human Rights. Despite the Government’s impatience with certain aspects of the way in which the European Convention impacts on the UK (such as the decision on prisoner’s voting rights, or the power of the judiciary to impose whole life prison sentences without possibility of review) there is a general public assumption that – on the whole – human rights are respected in the UK. But this cannot be said for many of the countries who have joined the Council of Europe.

If the UK Government is able to announce that it no longer wishes to accept rulings of the European Court of Human Rights, then it is not hard to imagine that many other countries – where human rights are less well protected – might want to make the same argument. This could lead to an unravelling of the standards set by the European Convention on Human Rights that could lead to significantly adverse consequences for the future development of human rights in Europe.

More broadly, if these proposals went ahead, they could undermine the ability of future UK Government’s to make the case for improvements in human rights standards, in other countries where they currently do not exist or are extremely weak.

I do not argue here that the application of the European Convention through the work of the European Court on Human Rights is perfect. Far from it: the decision taking process is sclerotic; the backlog of cases is a scandal. The UK Government has taken a lead in discussions on developing measures to ensure that the European Court works more efficiently.

And if, as the Conservative Party argues, the Court is suffering from ‘mission creep’ then to remain engaged with the Court and to argue that there has been mission creep seems to me a more positive way forward. (In the latest prisoners’ voting rights case, at least 2 judges expressed significant concerns about the way decisions of the Court had been going, which opens up the possibility that the Court might alter its approach. )

This should be an important issue for public debate. The problem is that so many people do not really understand what the Convention rights are nor how they are applied. The issues are treated inadequately in the news media. Thus there is often assumed to be a lack of common sense about the Convention and its application which is not justified.

Certainly it is an issue that will continue to attract attention over the next couple of years.

Written by lwtmp

October 4, 2014 at 5:13 pm

Prisoners’ Voting Rights: Supreme Court judgement

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The decision of the UK Supreme Court on Prisoners’ voting rights, published on 16 October 2013, seems to me to be rather more nuanced than much of the media coverage I have read and heard.

The case which reached the Supreme Court involved two appeals, one from England  (Chester) and one from Scotland (McKeoch). Only the Chester case invoked the European Convention on Human Rights and the Human Rights Act 1998. Both cases also raised a question of EU law.

The issue under EU law arose from the focus in the EU on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. However, eligibility to vote in Member States is basically a matter for national legislatures, and a matter for each individual legislature to determine. In any event, the EU legal principle of non-discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison. Thus, in both cases, the Supreme Court held that EU law did not apply.

As regards the European Convention on Human Rights and the Human Rights Act 1998, the Supreme Court noted that in a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (“ECtHR”) had held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1, the duty to hold free and fair elections.

Under the HRA, the Supreme Court is required to “take into account” decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with Article 3 Protocol 1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not, in the Supreme Court’s view, a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHR’s caselaw.

Thus contrary to some reporting, the Supreme Court has upheld the ECtHR’s view  that the UK’s blanket ban on voting rights is incompatible with the European Convention. The Supreme Court did not issue a declaration of incompatibility, however, because that is a discretionary remedy; the Court had already issued such a declaration; the Government was undertaking work to respond to the initial declaration; it was not for the Court to say how the Government should ultimately resolve the matter; and that therefore, being a discretionary remedy, the Court would not exercise its discretion in this case.

So the ball is still very much in the Government’s court.

The full judgement of the Supreme Court and a press release prepared by the Court are available at http://www.supremecourt.gov.uk/news/latest-judgments.html

Written by lwtmp

October 17, 2013 at 3:50 pm