Reform of the Human Rights Act: The Lord Chancellor’s “mechanism” to correct judgements

29 October 2021

At the recent Conservative party conference, the new Lord Chancellor, Dominic Raab, signalled his intention to “overhaul” the Human Rights Act 1998 (the ‘Act’). It has since been reported that he is working on a “mechanism” to allow the Government to introduce ad hoc legislation to correct court judgements that ministers believe to be incorrect. Whilst the precise details of any mechanism remain to be seen, this notion is constitutionally problematic in that it potentially grants the executive wide powers to override the judiciary.
 

Inherent in the government’s efforts to reform the Act is the insistence that the courts can and have used the Act to make law through the incremental expansion of Convention rights and their application. This view was highlighted in comments by Mr Raab at an event following his recent speech at the Conservative party conference, where he reportedly said of the European Convention of Human Rights (the ‘Convention’): “It’s the way it has been interpreted, in particular the licence given to courts to adopt through judicial legislation ever more elastic interpretation of rights”.

I briefly consider below the courts’ current powers, and their limitations, under the Act and the possible constitutional implications for further reform of the Act apparently envisaged by the Lord Chancellor.

Interpreting legislation under section 3 of the Act

Section 3(1) of the Act requires the courts to interpret and apply domestic legislation in a way which is compatible with Convention rights. However, the Act also imposes strict limits on the court’s powers. Sections 3(2)(b) and (c) safeguard Parliamentary sovereignty and ensure that Parliament, if minded to do so, may enact legislation which is not compatible with Convention rights. These provisions place a significant limitation on the extent to which judges can “make law” in respect of the application of Convention rights to the domestic context. The limitations on the courts’ interpretative powers under section 3 were highlighted by Lord Rodger in his judgment in Ghaidan v Godin-Mendoza [2004] UKHL 30, as follows at [110]:

“What excludes such provisions from the scope of section 3(1) is not any mere matter of the linguistic form in which Parliament has chosen to express the obligation. Rather, they are excluded because the entire substance of the provision, what it requires the public authority to do, is incompatible with the Convention. The only cure is to change the provision and that is a matter for Parliament and not for the courts.”

Declarations of incompatibility under section 4 of the Act

Under section 4 of the Act certain courts, including the Supreme Court, Court of Appeal and High Court,  are empowered to make a declaration of incompatibility where a legislative provision is determined to be incompatible with a Convention right. This power does not extend to the Crown Court, County Court, magistrates’ courts or tribunals. After such a declaration has been made, section 10 of the Act provides that a Minister of the Crown may issue a remedial order to amend the relevant legislation so as to make it compatible with Convention rights. It could be said that this power under section 10 already provides an effective mechanism for ministers to legislate swiftly in response to adverse judgments of the courts regarding human rights, albeit one that requires judicial prompting and emphasises correcting legislation rather than judgments.

The power to make a declaration of incompatibility under section 4 of the Act is discretionary and the courts have shown deference to Parliament in deciding not to exercise this power in cases where the matter in question is already being considered by Parliament. For example, the Supreme Court refrained from making a declaration of incompatibility in the case of R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63 which concerned prisoner voting rights, noting that the issue was already being addressed by Parliament.

Importantly, section 4(6) of the Act provides that a declaration of incompatibility does not affect the continued validity, operation or enforcement of the provision in respect of which it is given and is also not binding on the parties in the proceedings in which it is made. It therefore remains open to the government to ignore any declaration of incompatibility under section 4 and to refuse to amend the offending legislation. As such, it is clear that section 4 does not impinge upon Parliamentary sovereignty.

Constitutional concerns

As touched upon above, there is a more fundamental constitutional point to be made in respect of purported efforts to grant ministers potentially broad powers to override or dis-apply court judgments which they deem to be incorrect; that this undermines the rule of law. It is of central importance in a constitutional democracy that the executive branch remains subject to the law. As the judiciary is tasked with the application of the law, this means in practice that the government should respect and follow the decisions of the courts. To furnish government ministers with powers to make new laws in order to bypass inconvenient court judgments risks relegating the role of the courts and further unbalancing the constitution. The spectre of a society in which the government no longer respects or upholds the rule of law should be a grave concern for us all.

Conclusion

As highlighted above, the Act already contains a number of provisions by which the power of the courts to “make law” is inhibited and Parliament’s role as the legislature is emphasised, and this has been respected by the courts. 

The Lord Chancellor has said that the consultation on proposals to reform the Act will open within the next two months. We shall await with interest the extent of these proposals with a view to the broader constitutional implications which they present.

Further Information

If you have any questions or concerns about the topics raised in this blog, please contact Charlie Roe or any member of the Public Law team.

 

About the Author

Charlie is an associate in Kingsley Napley's public law team. He has assisted in Judicial Review proceedings, in the preparation for a major public inquest and in advising clients on data protection matters.

 

 

Latest blogs & news

High Court imposes positive operational duties on state authorities in environmental pollution context

On Thursday 16 September 2021 in the High Court, Fordham J handed down judgment in R (on the application of Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin) (“Richards”). The High Court declared that positive operational duties had been triggered on, and had been breached by, the Environment Agency (“EA”) under the European Convention of Human Rights Act (“ECHR”): Article 2 right to life and Article 8 right to respect for private and family life. The duties arose and were breached because the EA had failed to implement Public Health England (“PHE”) recommendations and advice as to dangerous hydrogen sulphide emissions emanating from a landfill site.

The Judicial Review and Courts Bill: Proposed reform of Judicial Review

Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.

As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.

Data protection law reform: A new direction? Part 1: Fixed and flexible ‘legitimate interests’

In this blog series, we will review the key proposals for reform of data protection law within the Government’s consultation paper ‘Data: A New Direction’. We will consider how far the Government will stray from the current path and signpost some potential pitfalls and practicalities for consideration along the way.

We begin with the Government’s proposals for creating a ‘whitelist’ of legitimate interests which always provide a lawful basis for processing under the UK GDPR. 

Can you refuse to give evidence to a public inquiry?

Individuals asked to give evidence to public inquiries often wonder whether they really have a choice. The case of Chairman of the Manchester Arena Inquiry v Taghdi [2021] EWHC 2878 (Admin) illustrates how refusing to participate might play out. Potential witnesses in next year’s coronavirus (Covid-19) inquiry take note.

Having our cake and eating it: Parliamentary sovereignty in light of Brexit and the Covid-19 pandemic

One of the key themes of the Brexit campaign was for the UK to retain Parliamentary sovereignty, or “Take Back Control.” This blog focuses on that aspect of Brexit and revisits previous discussions around delegated legislation and Parliamentary sovereignty to assess the effect of the past 9 months on our Parliament.

Reform of the Human Rights Act: The Lord Chancellor’s “mechanism” to correct judgements

At the recent Conservative party conference, the new Lord Chancellor, Dominic Raab, signalled his intention to “overhaul” the Human Rights Act 1998 (the ‘Act’). It has since been reported that he is working on a “mechanism” to allow the Government to introduce ad hoc legislation to correct court judgements that ministers believe to be incorrect. Whilst the precise details of any mechanism remain to be seen, this notion is constitutionally problematic in that it potentially grants the executive wide powers to override the judiciary.

Preparation for Public Inquiries - Webinar Summary

In light of the announcement that an independent inquiry into the Government’s handling of the coronavirus pandemic will begin in spring 2022, Kingsley Napley hosted a webinar last week on the theme of Preparing for Public Inquiries in conjunction with Blackstone Chambers and FTI Consulting. For anyone who missed this event, a recording is available here (LINK) and we have also prepared the summary below.  

What is Next for GDPR in the UK, is Change on the Horizon?

The General Data Protection Regulation (known to everyone as the GDPR) is probably the most famous piece of legislation to come from the EU. It was and is incredibly ambitious in its scope, and shapes the way we engage with organisations both online and in the real world. When the UK formally withdrew from the EU, GDPR became retained EU law and continued to apply as before. The government have recently announced that they want to reform data protection legislation, but substantial deregulation might be an unrealistic ambition.

Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)

The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.

New guidance encourages judicial review practitioners to be concise, succinct and prepared

Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.

Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.

The UK Supreme Court has confirmed the principles for judicial review of policies

R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38

Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.

Case Note – costs of interested parties in judicial review proceedings: CPRE Kent v Secretary of State for Communities and Local Government UK/SC 2019/0174

The Supreme Court has, unusually, recently heard, and now delivered judgment on, an appeal concerning costs in statutory appeal and judicial review cases.  It is unusual for costs issues to be considered significant enough to merit consideration by the Supreme Court and, not least given the outcome of the appeal – and of course it is easy to be wise after the event – it is something of a surprise that permission to appeal was granted in the first place.

Regulating working conditions: a ‘one stop shop’ approach to tackling modern slavery

To meet widespread concern about vulnerable workers and working conditions in industries including agriculture, fashion, food and waste disposal, last month (June 2021) the government set up a new watchdog to take over responsibility for tackling modern slavery, enforcing the minimum wage and protecting agency workers.

Data Subject Access Requests: The Do’s and Don’ts for Charitable Organisations

A Data Subject Access Request, or DSAR, is any request made by an individual for their own personal data. While they are quick and easy for an individual to make, many long hours and significant resources from your organisation will be needed in order to properly respond.

Judicial Review Reform – waiting for the sting

Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.

Safeguarding - 5 golden principles for school leaders

Over the past few weeks there has been a steady stream of disturbing stories alleging sexual harassment and sexual abuse of children attending a variety of schools across the country, not just incidents involving children and adults but in many cases peer-on-peer abuse.

A review of the SRA's Upholding Professional Standards Report 2018/19

The SRA introduced a new assessment and early resolution process focusing on upfront engagement and delivering, where possible, earlier outcomes on concerns reported to it. Additionally, in February 2019, the SRA introduced a revised Enforcement Strategy, setting out its approach to enforcement and the factors it will take into account when considering whether regulatory action is needed. 

Government Launches Public Consultation on Reforms to Judicial Review

On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.

Coaching, Teaching and Support Work in Lockdown: Safeguarding and Data Protection considerations when working with children online

The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”.  If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed.  In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

Skip to content Home About Us Insights Services Contact Accessibility