Written evidence from the Ministry of Justice (HRA0017)

Executive summary

• The UK has a long tradition of protecting rights and liberties domestically and of meeting our international human rights obligations. The protections contained in our domestic legal framework, including the Human Rights Act 1998 (HRA) and the devolution statutes, mean that individuals can uphold their rights under the European Convention on Human Rights (ECHR) in a UK court. The HRA ensures an effective remedy is available for any violation of those rights, including where primary legislation is at issue.

• The HRA empowers courts to determine whether legislation is compatible with the ECHR rights as set out in the HRA. Under section 3 of the HRA, legislation must be read and given effect, so far as possible, in a way which is compatible with those rights. If a higher court is satisfied that legislation is incompatible with those rights, it may make a declaration of incompatibility under section 4 of the HRA. Since the HRA came into force, 40 declarations of incompatibility have been made, ten of which have been overturned on appeal and two are currently subject to appeal. These declarations have been effective in bringing incompatibilities to the Government’s attention: 20 have been remedied already, proposals have been laid to remedy a further four and the remaining four are currently under consideration.

The UK’s human rights framework

1. The UK is committed to protecting and respecting human rights. We have a longstanding tradition of ensuring rights and liberties are protected domestically and of fulfilling our international human rights obligations. We have strong human rights protections within a comprehensive and well-established constitutional and legal system. In domestic law, rights are protected through the common law, the Human Rights Act 1998 (HRA) and the devolution statutes as well as other legislation.

2. The HRA gives further effect in UK law to the rights and freedoms contained in the European Convention on Human Rights (ECHR). This means that individuals can uphold those rights in a UK court rather than needing to apply to the European Court of Human Rights (ECtHR). The HRA makes it unlawful for any public authority, and those who exercise the functions of a public authority, to act in a way which is incompatible with a Convention right,[1] except where required to do so by primary legislation. As well as proceedings under the HRA, individuals may also have recourse to judicial review, to a claim under other domestic legislation, or to the ECtHR.

Remedies under the HRA

3. The UK provides an effective remedy for victims of violations of Convention rights, through the HRA as a whole which gives individuals the ability to bring proceedings to enforce their rights or rely on those rights in other proceedings (such as an appeal), and through the ability for courts and tribunals to award any relief or remedy within their power as they consider just and appropriate.

4. Section 7 of the HRA provides that a person may bring proceedings against a public authority under the HRA, or rely on the Convention rights in any legal proceedings, if they are (or would be) a victim of an act that is incompatible with a Convention right. Under section 8 of the HRA, if a court finds that a public authority has acted in a way that is incompatible with a Convention right, it can award any remedy within its power that it considers to be just and appropriate.

5. It is a significant feature of the HRA that it empowers courts to determine whether all legislation is compatible with the Convention rights. Under section 3 of the HRA, legislation must be read and given effect, so far as possible, in a way which is compatible with those rights. If a higher court[2] is satisfied that legislation[3] is incompatible with a Convention right, it may make a declaration of incompatibility under section 4 of the HRA. Such a declaration constitutes a notification to Government and Parliament of the incompatibility. It does not affect the continuing operation or enforcement of the legislation in question; neither does it bind the parties to the case in which the declaration is made. This respects the supremacy of Parliament in the making of the law.

6. The ECtHR has been clear that states enjoy a certain margin of appreciation in the implementation of Article 13 ECHR. Article 13 does not require incorporation of the ECHR into domestic law; nor does Article 13 require that individuals should be able to challenge legislation as such on the ground of being contrary to the Convention (e.g. James and Others v UK, para. 85). What Article 13 requires is that the substance of the rights in the ECHR is secured to those in the state’s jurisdiction.

Declarations of incompatibility

7. Section 4 of the HRA provides that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given. There is no legal obligation on the Government to take remedial action following a declaration of incompatibility or on Parliament to accept any remedial measures the Government may propose. It has, however, been the practice for the Government to consider and address such declarations either through primary legislation where possible or by way of a remedial order under section 10 of the HRA.

8. Since the HRA came into force on 2 October 2000, 40 declarations of incompatibility have been made. Ten of these have been overturned on appeal, and two are currently subject to appeal. Of the remaining 28:

• 5 related to provisions that had already been changed by primary legislation at the time of the declaration
• 11 have been addressed by later primary or secondary legislation
• 3 have been addressed by a remedial order made under section 10 of the HRA
• 4 the Government has notified Parliament that it is proposing to address by a remedial order
• 1 is being addressed by administrative measures
• 4 are currently under consideration. These were made on 5 February 2015 (upheld on appeal 18 October 2017) (Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs, and Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah); 28 November 2017 (Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others); 27 June 2018 (Steinfeld and another v Secretary of State for International Development); and 30 August 2018 (Siobhan McLaughlin, Re Judicial Review (Northern Ireland)).

9. This shows that that courts have effectively exercised their power to make declarations of incompatibility, and that these declarations have been effective in bringing incompatibilities to the Government’s attention.

Statements of compatibility

10. The HRA also requires Ministers to address explicitly the compatibility of proposed primary legislation. Under section 19 of the HRA, the Minister in charge of a Government Bill must make a statement upon the introduction of the Bill into each House of Parliament. This statement is either a statement of compatibility with the Convention rights under section 19(1)(a), or an indication under section 19(1)(b) that a statement of compatibility cannot be made, but that the Government nevertheless wishes Parliament to proceed with the Bill, thus highlighting the matter for scrutiny. The Government has also recognised that it is good practice that a Minister, inviting Parliament to approve a draft Statutory Instrument or Statutory Instrument subject to affirmative resolution, should volunteer his or her view regarding its compatibility with the Convention rights.

Remedial Orders

11. A Remedial Order is an order made under section 10 of the HRA that amends primary or subordinate legislation that has been found by domestic courts to be incompatible with the ECHR rights as set out in the HRA, or by the ECtHR to be incompatible with the ECHR.

12. Six Remedial Orders have been made under the powers in section 10 of the HRA since it came into force. Three of these were made following declarations of incompatibility:

• Mental Health Act 1983 (Remedial) Order 2001 following R (oao H) v Mental Health Review Tribunal North & East London Region (Secretary of State for Health Intervening)
• Asylum and immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2011 following R (oao Baiai and others) v Secretary of State for the Home Department
• Sexual Offences Act 2003 (Remedial) Order 2012, following R (oao F (by his litigation friend F)) and Thompson (FC) v Secretary of State for the Home Department.

13. Three followed judgments of the ECtHR:

• The Naval Discipline Act 1957 (Remedial) Order 2004 following Mark Grieves v UK
• The Marriage Act 1949 (Remedial) Order 2007 following B and L v UK
• The Terrorism Act 2000 (Remedial) Order 2011 following Gillan and Quinton v UK.

14. The Joint Committee on Human Rights has in the past encouraged the greater use of Remedial Orders.[4] There are currently four draft Remedial Orders laid before Parliament:

• Draft Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 following Z (A Child) (No. 2), proposal laid 29 November 2017
• Draft British Nationality Act 1981 (Remedial) Order 2018 following R (oao Johnson) v Secretary of State for the Home Department and R (oao Fenton Bangs) v Secretary of State for the Home Department, proposal laid 15 March 2018
• Draft Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2018 following R (oao Reilly (No. 2) and Hewstone) v Secretary of State for Work and Pensions, proposal laid 28 June 2018
• Draft Human Rights Act 1998 (Remedial) Order 2019 following Hammerton v UK, proposal laid 16 July 2018.

The European Court of Human Rights

15. It is an important principle of the ECHR system that primary responsibility for guaranteeing human rights rests with the government, parliament and courts of the member States. The role of the ECtHR is as a backstop for serious violations and as the ultimate interpretative authority for the ECHR. Under the doctrine of the margin of appreciation and the principle of subsidiarity, as established in jurisprudence and enshrined in Protocol 15 to the ECHR following the Brighton Declaration of 2012 and the Copenhagen Declaration of 2018, the ECtHR should respect different solutions and different approaches between States as being legitimate.

16. The United Kingdom has a strong record at the ECtHR. A large number of applications are declared inadmissible or struck out each year, and only a few proceed to judgment. At the end of 2017, cases against the UK made up only 0.2% of the Court’s ongoing caseload; during 2017, the Court handed down five final judgments in UK cases and found a violation in only two of these. This supports the view that the HRA as a whole ensures an effective domestic remedy.

Table 1. Applications against the UK declared inadmissible or struck out[5]

Table 2. Judgments in cases brought against the UK[6]

Judicial independence

17. Judicial independence is a fundamental constitutional principle in that the judiciary is independent of both the Government and Parliament, and this ensures the even-handed administration of justice. The Government recognises the importance of judicial independence and the need to act in a manner which strongly upholds the independence of the judiciary.

18. The principles underpinning the separation of powers between the Executive and the judiciary are set out in the Constitutional Reform Act 2005. The Constitutional Reform Act 2005 has strengthened the separation of powers and judicial independence by transferring a number of functions from the Lord Chancellor to the Lord Chief Justice and by creating a statutory duty to uphold judicial independence. Section 3 of the Constitutional Reform Act 2005 provides that responsibility to uphold the continued independence of the judiciary extends to the Lord Chancellor, Ministers of the Crown and ‘all with responsibility for matters relating to the judiciary or otherwise to the administration of justice’. The Act also created the Supreme Court in furtherance of the objective to achieve a full and transparent separation between the judiciary and the legislature.

Acts of public authorities

19. Section 6 of the HRA makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, except where required to do so by primary legislation which cannot be read compatibly with the Convention rights.  An ‘act’ for the purposes of section 6 includes a failure to act. ‘Public authority’ is defined as including a court or tribunal, and ‘any person certain of whose functions are functions of a public nature’; but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. The Care Act 2014 additionally specifies that a provider of regulated care and support that has been arranged or paid for by a local authority, a relevant authority in Northern Ireland, or a Health and Social Care trust is also to be taken as exercising a function of a public nature for the purposes of the HRA.

20. Section 6 is a core provision of the HRA, imposing a wide duty on public authorities.  Creating a domestic law obligation to act compatibly with the Convention rights, and enabling victims to get redress before domestic courts if public authorities acted in breach of this obligation, was a key purpose of the HRA.

The Human Rights Commissions

21. The Government funds the Equalities and Human Rights Commission (EHRC). The EHRC has a statutory role under section 9 of the Equality Act 2006 to promote understanding of the importance of human rights; encourage good practice in relation to human rights; promote awareness, understanding and protection of human rights; and encourage public authorities to comply with section 6 of the HRA. It has statutory powers to monitor the law and report on progress; it also has powers of investigation and may conduct inquiries. It offers advice and guidance to the public, civil society organisations and public authorities.

22. The EHRC maintains a website which provides information and guidance to members of the public in relation to the scope, limits and protection of the HRA, including guidance on the steps that individuals can take if they believe their human rights have been breached. It includes an overview of the obligations on public authorities, including the courts, as well as information on the time limits within which cases must be brought.

23. The Northern Ireland Human Rights Commission (NIHRC) was established as an institution under the Belfast (Good Friday) Agreement 1998. It is a non-departmental public body, with grant-in-aid funding provided by the UK Government through the Northern Ireland Office. The NIHRC has a statutory role under the Northern Ireland Act 1998 to keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights, which includes compliance with the ECHR; and to promote understanding and awareness of the importance of human rights in Northern Ireland through advice, education, and research. This includes guidance and advice for public authorities to ensure compliance with section 6 of the HRA.

24. The Scottish Human Rights Commission was established under the Scottish Commission for Human Rights Act 2006 to promote human rights.

14 September 2018

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