A CROSS-PARTY committee of MPs and peers has said the UK Government should not try to reform the Human Rights Act (HRA) without consent from the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly.
The Joint Committee on Human Rights report – the Government’s Independent Review of the Human Rights Act – said its positive impact should be “welcomed and protected”.
Edinburgh South West SNP MP Joanna Cherry QC, the committee’s deputy chair, said she welcomed the report’s publication.
She told The National: “Now more than ever, against the background of the pandemic and the threats to rights such as freedom of expression and freedom of assembly implicit in the UK Government’s current legislative programme, the human rights and protections afforded by the Human Rights Act are very important.”
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The HRA incorporates the European Convention on Human Rights (ECHR) into the UK’s domestic legal systems, and MPs and peers on the committee said it was essential that proposals to amend it take account of its unique role in the constitutional arrangements of the devolved nations.
They concluded that the UK Government should not pursue reform of the Act without the consent of the devolved parliaments in Scotland, Wales and Northern Ireland. However, they said amending it could constitute a risk to the UK’s constitutional settlement and to the enforcement of human rights across the UK.
As a result of the Act, human rights cases are now heard first by judges in the UK’s domestic courts. They are heard sooner and actions is less prohibitively expensive. Judges from the UK’s four nations are also able to take better account of the UK and national context of cases, which the report said had resulted in an improvement in the enforcement and accessibility of human rights in the UK.
Public authorities had to act compatibly with ECHR rights, embedding them in the delivery of public services. The Act is also a central part of the devolution settlement.
The Government’s review looked closely at the relationship between the UK courts and the ECHR and found that the HRA did not unduly constrain the domestic courts.
It also considered that the requirement in section 2 of the act that UK courts take into account relevant factors, including ECHR judgments, was entirely sensible.
“Without it, UK courts could not engage properly with factors relevant to the matters before them and would risk more successful appeals to Strasbourg,” it said.
“It would also risk the ECHR having less confidence in UK judgement and thus according the UK less of a margin of appreciation.
“Any change to section 2 HRA could only serve to damage the rights of UK citizens – with the associated increases in time and cost of cases going to Strasbourg.”
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The committee’s report warned that the Government had to be cautious about any changes to the Act which would limit how individuals can access effective remedies.
“In particular, if some categories of people were unable to seek to enforce their rights in UK courts or if the extra territorial effect of the Act were limited this would mean claimants would need to go to Strasbourg,” it said.
“This would damage enforcement of rights in the UK and would risk placing the UK in breach of its duties under Article 13 of the ECHR.”
The Independent Human Rights Act Review Panel was appointed in January 2021 following the Tory manifesto commitment to “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”.
Cherry said: “In Scotland the HRA applies as an integral part of a larger and more complex legal and constitutional framework. The powers of the Scottish Parliament and the Government are limited by the requirement to act compatibly with human rights obligations under the Scotland Act and under section 29 of that Act, legislation which is incompatible with the rights in the ECHR, defined by reference to the HRA, is outside the competence of the Scottish Parliament.
"The committee heard evidence that this has resulted in Convention rights becoming a very strong part of the fabric of Scotland’s laws and judicial analysis, and the development of a rights-based culture in Scotland.
“Accordingly, I am delighted that the cross-party committee ... has concluded that the UK Government should not pursue reform of the HRA without the consent of the Scottish Parliament.”
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