I remember keenly awaiting enforcement of the Human Rights Act 1998 (HRA) during the late 90s. I attended seminars and read many articles anticipating the impact of the long-awaited legislation. Many practitioners felt elated that at long last we were to benefit from legislation that would finally incorporate the European Convention of Human Rights (ECHR) into domestic law.
During my conduct of the NHS abortion funding case A and B v Secretary of State for Health  UKSC 41, the potency of the HRA was demonstrated by the evolving nature of the courts’ decision-making. The litigation operated as an effective and fair process by which the judiciary reviewed the executive’s funding policy. Furthermore, whilst the claimants lost by the narrowest of margins in the Supreme Court, the executive reversed its policy shortly after the decision, enabling hundreds of women from Northern Ireland to access NHS-funded abortions in England prior to decriminalisation of abortion in Northern Ireland.
Of note is that the Article 8 and Article 14 claims were unsuccessful in the Administrative Court, but the Court of Appeal held that Article 8 was clearly engaged. The Supreme Court went on to hold that Article 14 was also engaged but took the view that discrimination against the specific group was justified. The domestic courts’ decisions, which took account of European Court of Human Rights (ECtHR) jurisprudence, paved the way for a more streamlined application to the EctHR on outstanding issues following the government’s concession on its funding policy. In my view, the case demonstrates the fundamental importance of both judicial review and the HRA, both of which are currently under review.
As a member of the Law Society’s Human Rights Committee, I share the views of many that the HRA in its current form remains a vital tool for facilitating access to justice, both at home and abroad.
It is reassuring that in its announcement of the review on 7 December 2020, the government confirmed that the UK remains committed to its obligations under the ECHR and there is no intention to tinker with the substantive rights set out in the Convention.
The terms of the review seek to examine, inter alia:
1. The relationship between the domestic courts and the EctHR. This includes how the duty to ‘take into account’ ECtHR case law has been applied in practice, whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement; and
2. 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.
As regards no 1: This appears to be directed specifically at the judiciary’s interpretation of and compliance with section 2 HRA. As this is a discrete issue, I cannot help but wonder whether dialogue with the judiciary should have been actively considered, as opposed to having a review as the starting point.
As regards no 2: It is unclear whether the underlying suggestion is that the HRA inherently distorts or interferes with the fundamental constitutional principles: parliamentary sovereignty and separation of powers. A key factor remains that section 4 HRA declarations of incompatibility are non-binding. I therefore struggle to see how the judiciary can be regarded as inherently straying beyond its constitutional role and into the legislative arena. In the early post- HRA decision of Bellinger v Bellinger  UKHL 45, the then House of Lords was at pains to make clear that the issue of gender reassignment was a matter for parliament to determine and not the judiciary, in deference to separation of powers.
As regards the judiciary’s relationship with the executive: either we accept that the ECHR should continue to apply domestically, including inevitable scrutiny of the executive, or we do not. If there is no intention to withdraw from the ECHR or to interfere with the substantive rights that it protects, why should the executive be above the HRA? One cannot help but question if intended scrutiny of 'whether domestic courts are being unduly drawn into areas of policy' is in part due to the aftermath of challenges such as Miller (No1) and Miller (No 2). If it is, this is indeed a worry. If not, my mind cannot help but dwell on a certain proverb which includes the words 'ain’t' 'broke' and 'fix.'
The deadline for responding to the consultation is 3 March 2021.
Angela Jackman is partner at Simpson Millar, senior lecturer at City Law School and a member of Law Society human rights committee