Rt Hon Harriet Harman MP Twenty years of the Human Rights Act: Extracts from the evidence Contents 1 ECtHR Judgments against the UK: the effects of the HRA 2 2 Relationship of UK Courts and ECtHR 4 3 Using the ECHR in the UK courts 5 4 Judgments on rights 7 5 Wider policy changes brought about through individual legal cases 8 6 The Human Rights Act and Parliament 9 7 The Human Rights Act and Legislation 11 Parliamentary scrutiny of legislation 12 The process when UK courts consider legislation is not compliant with the Convention 12 8 Section 6 of the Human Rights Act 14 Change secured without using court proceedings 15 Training in Human Rights 16 9 Further issues raised in evidence 18 Incorporation of other human rights treaties? 18 The definition of public authority 18 Access to justice 19 Freedom of Religion and Belief 20 Wider Understanding of Rights 21 2 Twenty years of the Human Rights Act: Extracts from the evidence 1 ECtHR Judgments against the UK: the effects of the HRA Box 1: Lord Irvine of Lairg, House of Lords Second Reading Debate, 3 Nov 1997 “Our legal system has been unable to protect people in the 50 cases in which the European Court has found a violation of the convention by the United Kingdom. That is more than any other country except Italy. The trend has been upwards. Over half the violations have been found since 1990.”1 Source: HL Deb, 3 Nov 1997, col 1228 Box 2: Bingham Centre for the Rule of Law […] In 2017 only 0.2%, 2 out of all 1,068 judgments given by the Strasbourg Court found a violation by the UK, and in 2016 this figure was 0.7%, 7 out of all 993 judgments. Again, this represents a decrease since the coming into force of the HRA. For example, in 1999 6.8% of all judgments given by the Court found at least one violation by the UK, and in 2000 this figure was 2.3%. The figure was 2.1% in 2001; 3.6% in 2002; 2.8% in 2003; and 2.6% in 2004.1 Source: HRA0026 Box 3: Dr Alice Donald One means of assessing whether the HRA has succeeded in its aspiration to ‘bring rights home’ is to determine whether it has led to a reduction in the number of judgments at the European Court of Human Rights (ECtHR) finding a violation by the UK of one or more rights contained in the European Convention on Human Rights (ECHR). Allowing for a lag of several years from the enactment of the HRA, as public authorities adjusted their policies and practices and older cases worked through the domestic and Strasbourg systems, a decline in adverse judgments would be expected as a result of the fact that UK courts and other public authorities now consider human rights more explicitly and intensively than before—and that the Strasbourg Court is, in turn, more likely to endorse their reasoning and conclusions. Source: HRA0021 1 Note that because of the time taken for cases to reach Strasbourg most of these cases will have originated before the Human Rights Act came into force. Twenty years of the Human Rights Act: Extracts from the evidence 3 Table 1. Judgments finding a violation against the UK 2001–2017 Source: Statistics from ECHR website https://www.echr.coe.int/Pages/home.aspx?p=court/annualreports&c 4 Twenty years of the Human Rights Act: Extracts from the evidence 2 Relationship of UK Courts and ECtHR Box 4: Professor Merris Amos British courts can now exert strong influence, changing the course of Convention jurisprudence for all Contracting States, and helping to ensure that where the UK wishes to maintain a national position on an important issue, such as its ban on political advertising, this is far more possible than might have otherwise been the case. Applications against the UK now considered by the ECtHR where a UK court has not had the chance to exert its influence are very rare. Source: HRA0019 Box 5: Bingham Centre for the Rule of Law […] the JCHR observed in 2014 that in an increasing number of recent UK cases, the Strasbourg Court has “demonstrated its willingness to defer to the reasoned and thoughtful assessment by national authorities (including Parliament) of their Convention obligations, resulting in legislation being upheld as being within the UK’s margin of appreciation”. This is evidenced for example in cases such as Animal Defenders International v UK (Application no. 48876/08) in 2013, which concerned the prohibition on paid political advertising in UK law and where the Grand Chamber, by nine votes to eight, found no violation of Article 10 ECHR. The Court considered the domestic examination of the issues and stated that it “attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process”. Similarly, in 2014 in Jones and Others v UK (Applications nos. 34356/06 and 40528/06) the ECtHR upheld the House of Lords’ decision to grant state immunity in respect of civil proceedings concerning allegations of torture and held that there was therefore no violation of Article 6 ECHR. The European Court commented on the UK court’s consideration of the case. It stated that “In the present case, it is deemed clear that the House of Lords fully engaged with all of the relevant arguments concerning the existence, in relation to civil claims of infliction of torture, of a possible exception to the general rule of State immunity” and that “In these circumstances, the Court is satisfied that the grant of immunity to the State officials in this case reflected generally recognised rules of public international law.” Source: HRA0026 Twenty years of the Human Rights Act: Extracts from the evidence 5 3 Using the ECHR in the UK courts Box 6: Lord Mishcon, Second Reading Debate, House of Lords, 3 Nov 1997 […] the only way in which advantage can be taken of that convention is by telling one’s client (if one happens to be a lawyer) ‘in our view, you have definitely got rights under this convention. But I am sorry that, in order to exercise them, you will have to take a journey to Strasbourg with me. It will take a long time because the lists are cluttered up. I am afraid that when we start thinking of legal costs, the amount will be considerable. I am afraid also that you will not necessarily have the benefit, as you would have done if things had been different, of going before an English judge who would interpret—as much as he could—by the principles of English law the law set down by the convention.” Source: HL Deb, 3 Nov 1997, col 1251 Box 7: Rt Hon Jack Straw, Home Secretary, Second Reading Debate, House of Commons, 16 February 1998 The effect of non-incorporation on the British people is a practical one. The rights, originally developed by Britain, are no longer seen as British, and enforcing them takes far too long and costs far too much—on average five years and £30,000 to get an action into the European Court at Strasbourg once all domestic remedies have been exhausted. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts, without inordinate delay and cost. Source: HC Deb, 16 February 1998, col 768 Box 8: Age UK, 2018 If the HRA had not been incorporated into domestic law, it would have been much harder for those cases involving older people and the abuse of their rights under the ECHR to have been brought in the UK courts. The individuals affected by the breaches in question would have had to bring a case to the European Court of Human Rights in Strasbourg, a long, costly and time-consuming process for anyone but even more difficult for older people who are likely to experience particular challenges, including lack of mental and physical capacity as well as limited financial means, to bringing such a case. Source: HR A0011 Box 9: Coram Children’s Legal Centre One of the key benefits of the HRA for children has been the ability to bring cases rapidly to national courts and to access immediate remedies. This is particularly important as timescales are important to children and young people who may otherwise age out of protections available only through the ECHR. Source: HRA0018 6 Twenty years of the Human Rights Act: Extracts from the evidence Box 10: Judicial Power Project The first mistake is to confuse the merits of the HRA with the question of whether the law should secure human rights. It is undeniable that the law should respect, promote and secure human rights. The question is how best to realise this end and in particular whether the HRA helps or hinders the realisation of rights and whether it does so by acceptable means. The second mistake is to think that before the HRA was enacted human rights were not protected in the UK or were somehow in constant danger of violation. Prior to the HRA’s enactment, the UK, like other similar common law countries, had a long and enviable (if inevitably imperfect) record of securing rights, and otherwise governing well, by way of parliamentary democracy.