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Brexit: UK and EU reach deal on Northern Ireland border checks9th December 2020
The Conservative Party 2019 manifesto claimed that the UK ‘has been a beacon of freedom and human rights’ and would continue to be so.
The same manifesto also contained a 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.’
Attacks on lawyers and human rights:
Recently, the Home Secretary has criticised the work of ‘activist lawyers’ in the context of immigration and asylum cases. During her speech to the Conservative Party Conference on 4 October, Patel intensified her targeting of “do-gooders” and “lefty lawyers”. Two days later the Prime Minister went even further, telling the annual Conservative conference the criminal justice system was “being hamstrung by lefty human rights lawyers”.
This may be red meat for the political party faithful but attacking lawyers for working within the law to represent their clients is utterly irresponsible and potentially dangerous to individuals. In mid-September, the Metropolitan Police informed the Home Secretary that it was suspected that a far-right extremist had attempted to carry out a terror attack at a solicitors’ firm in London – The Guardian 25 October.
Protection of Human Rights in the UK:
The UK is a founder member of the Council of Europe – (which is NOT the EU). The European Court of Human Rights operates under the aegis of the Council of Europe. The European Convention on Human Rights came into force in 1953 and binds the UK in international law. The ambit of the Convention has been extended from time-to-time by various Protocols. For example, Protocol 13 abolishes the death penalty in all circumstances and States may not derogate from this.
The Convention provides that signatory States are bound by judgments of the E Ct HR to which they are a party. The State is then expected to implement the judgment. The UK has an excellent record of compliance but the question of prisoner voting was one area where the UK was reluctant to act – see House of Commons Research Briefing 19 November 2020.
The Human Rights Act 1998 has required public authorities in the UK (including the courts) to act compatibly with the European Convention. The Act does NOT enable the courts to ignore Acts of Parliament but it does require them to read legislation, as far as possible, in a way that is compatible with human rights.
If the court (High Court and above) finds that it cannot interpret the legislation in a compatible way then a declaration of incompatibility may be issued. This brings the incompatiblity to the notice of the government and the Act contains a “fast-track” procedure for amending the law. Whilst the government does not have to change the law in such a situation, it has generally done so.
Political attacks on the system:
Over recent years, protection of human rights in the UK has been under attack largely from Conservative politicians even though a formal move to start a process of reform has been left to one side. That is probably because of the demands of Brexit.
Six years ago, I wrote on this blog about the Conservative Party’s earlier ideas for reforming human rights protection in the UK – Post 6 October 2014 . I wrote –
‘There is clear dislike (even hatred) by certain Ministers of the European Convention on Human Rights (E Conv HR); the European Court of Human Rights (E Ct HR) and the UK’s own Human Rights Act 1998 (HRA 98). This attitude undoubtedly stems from the simple fact that the system of human rights protection acts as a check on Ministerial (executive) power. It exists to protect the individual – ALL individuals – from the untrammeled power which the State might otherwise exercise. It appears that Ministers think it is best to water down or remove the existing protections whilst, if they can, maintaining a facade of adherence on the international scale.’
As things stand, I see no reason to resile from that statement. For example, currently before Parliament is the Overseas Operations (Service Personnel and Veterans) Bill which seeks to make provision about legal proceedings and consideration of derogation from the European Convention on Human Rights in connection with operations of the armed forces outside the British Islands.
As the transition (or implementation) period draws to a close at the end of 2020, the government has announced a review of the Human Rights Act – see the Government Press Release 7 December 2020.
The announcement states – ‘The UK remains committed to the European Convention on Human Rights. The review is limited to looking at the structural framework of the Human Rights Act, rather than the rights themselves.’
The review will be led by former Court of Appeal Judge, Sir Peter Gross, and will consider if the HRA needs updating after two decades of being in force.
‘As promised in the Manifesto, it will take a fresh look at the Act – how it operates and protects human rights – to ensure it continues to meet the needs of the society it serves.
Specifically, the review will consider:
- The relationship between the domestic courts and the European Court of Human Rights (ECtHR). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
- The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
- The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.
The panel comprises –
- Sir Peter Gross – Panel Chair
- Simon Davis
- Alan Bates
- Professor Maria Cahill
- Lisa Giovannetti QC
- Sir Stephen Laws QC
- Professor Tom Mullen
- Baroness O’Loan
There is no doubt that the European Convention in combination with the Human Rights Act 1998 offers individuals in the UK strong human rights protection. Any proposals to alter this protection must receive the most anxious scrutiny no matter how eminent the source of the proposals.