United Kingdom: Human Rights Act Review: Signalling a rollback of regulation and judicial oversight post Brexit?

The Independent Human Rights Act Review (IHRAR) panel (“Review“) is led by Sir Peter Gross. Its establishment follows the 2019 Conservative Party manifesto commitment that:

We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.

The Review seeks to examine whether the HRA “is working in practice” and “continues to meet the needs of the society it serves,” looking specifically at two key themes:

1. the relationship between domestic courts and the European Court of Human Rights (ECtHR)
2. the impact of the HRA on the relationship between the judiciary, the executive and the legislature

Baker McKenzie participated in the recent call for evidence by the Review, collaborating with the Law Society and, separately, several industry representative bodies on responses as well as issuing our own, which is available here.

The IHRAR is expected to report in Summer 2021 with options for reform that could have significant implications for the rights and standards to be observed in the UK, the ability of individuals to enforce their rights directly before domestic courts and the scrutiny of the exercise of executive power. Its work should be read together with the work of the Independent Review of Administrative Law panel (IRAL), which is considering options for the reform to the judicial review process (Baker McKenzie’s submission to the IRAL can be found here), and which is expected to publish its conclusions this week.

The recommendations made by the IHRAR and IRAL may reshape existing constitutional norms and protections — opening a path to the light-touch regulatory economy reportedly envisaged as part of the UK’s post-Brexit future. Setting aside the question of how this might be pursued within the constraints of level playing field commitments made to the EU, as a practical matter, corporates operating across jurisdictions will remain tasked with meeting regulatory burdens across borders and the potential challenges in a divergence of approach in the UK’s domestic application of international rights obligations, as well as the decisions of public authorities more broadly.

In depth

The framing of the Review

The HRA came into force in 2000 and has operated as a significant buttress to the respect and enforcement of individual human rights in the UK in three key ways:

1. UK legislation should be compatible with the European Convention on Human Rights (ECHR).

Parliament will work to make sure that new legislation is compatible with the ECHR, while retaining its sovereignty and power to pass incompatible laws. The courts will also interpret laws in a way that is compatible with the ECHR where that is possible.

2. Public bodies should act with respect to individual rights.

All public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and anybody performing a public function must act with respect to, and to protect, individual human rights.

3. Individuals’ ability to seek justice in a British court.

The HRA incorporates the rights set out in the ECHR into domestic British law. This allows individuals to enforce those rights before a British court, rather than having to go to the ECtHR in Strasbourg.

The IHRAR will look at the operation of the HRA in two broad ways:

1. The relationship between the domestic courts and the ECtHR: The current position under the provisions of the HRA is for domestic courts and tribunals to “take into account” ECtHR jurisprudence insofar as relevant to determine a question that has arisen in connection with a convention right.
2. The impact of the HRA on the relationship between the judiciary, the executive and the legislature: The judiciary, the executive and the legislature each have important roles in protecting human rights in the UK. The Review is considering 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.

The IHRAR is not considering a potential departure from the ECHR, a binding international treaty, or derogation from the ECtHR.

Baker McKenzie’s response to the Review

Baker McKenzie made the following points in response to the Review:

• We do not see any basis to revise, replace or remove the HRA in its current form. The HRA is working well and plays a key role in securing individual rights within the UK constitution in a number of areas including, amongst others, immigration and the protection of refugees, national security, movement, rights to work, healthcare, property and expression.
• Any reforms arising from the Review must not diminish the protections afforded by the HRA or undermine domestic courts’ capacity to discharge their constitutional functions in protecting fundamental rights. This is particularly important in the context of the continuing digital transformation of our society, and in light of greater societal and workplace pressures faced by individuals as a result of the current pandemic.
• Any proposed reform of the HRA must be considered together with the proposed reform of the scope and operation of judicial review more generally in the UK. If the Review and the IRAL’s review were to weaken the protections afforded by the HRA and judicial review, this would undermine fundamental principles of fairness, accountability and the rule of law. It might also undermine public confidence in the quality of decision-making by authorities.
• It is also important to consider the impact of any potential reforms on business interests, since the HRA plays a role in attracting investment and talent to the UK.

What does this Review mean for industry?

The HRA ensures consistency across the many thousands of acts or decisions of public authorities that are made each year by ensuring that they are compliant with the ECHR. Securing a level playing field in this regard between jurisdictions is a key concern for many international corporate clients who are affected by the decisions of public authorities across multiple European jurisdictions, as well as European domestic legislatures. If, following receipt of the IHRAR and the IRAL’s recommendations, Parliament decides to take action that might render rights protections vulnerable to executive overstep and/or remove a crucial mechanism by which the executive might be held to account for any abuse of power, this could affect the UK’s ability to offer this certainty as to the rights and standards to be observed in the UK.

It is also widely recognised that the legal landscape is changing across the EEA, with ESG and human rights diligence at the forefront of many companies’ agendas. The trend to mandatory legislation in this space, including environmental and human rights due diligence and the prevention of modern slavery in supply chains, means that businesses are increasingly aware of the part they play in securing and protecting fundamental human rights.