In the 2019 Conservative Party Manifesto, a manifesto which won the Conservatives an 80-seat majority, buried amongst its commitments to ‘Get Brexit Done’, (proposed) investments in policing and promises of no new taxes is a rather ominous sounding claim to “look at the broader aspects of our constitution” including an “update of the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals … and effective government”, going on to say that judicial review must be looked at to ensure “that it is not abused to conduct politics by another means.”(1) Following an unlawful suspension of Parliament in September 2019 that was scuppered by judicial review proceedings before the Supreme Court, this appeared to be nothing more than a cynical act of vengeance. But, a year after the general election, we now have two independent reviews into the functioning of judicial review and the Human Rights Act (HRA): the Faulks Review of Judicial Review and, announced on 7th December, the Independent Review of the Human Rights Act. So, are these reviews merely pretexts for an executive power-grab or a genuine attempt to improve the function of judicial review and human rights law within the UK?
Context of the review:
The Human Rights Act 1998 (HRA), coming into force in October 2000, brought the provisions of the European Convention on Human Rights (ECHR) into UK law, meaning that the ECHR cases about people in the UK could be decided by judges in the UK, empowering British citizens who no longer had to face the lengthy process required to bring cases before the European Court of Human Rights in Strasbourg. (2)
That a review into the Human Rights Act has been formed by the government is far from surprising. Not only does it fulfil a manifesto promise but, since 2010, the Conservative Party has aimed to replace the HRA with a ‘British Bill of Rights’. And since 2010, Conservative ministers have been keen to promote disinformation and misinformation to justify restricting human rights. For example, Theresa May in 2011, infamously and wrongly suggested that the HRA prevented the deportation of a convict with a pet cat due to Article 8 – the right to family life - which was swiftly dismissed as nonsense at the time by then Justice Secretary, Ken Clarke QC.(3)
In recent months, such attacks have moved beyond the HRA to targeting the lawyers themselves. Home Secretary, Priti Patel, is particularly prone to verbally assaulting human rights lawyers. In her October Conservative conference speech, Patel lumped together “traffickers” and “leftie lawyers” as defenders of a broken immigration system.(4) Such rhetoric has had real-world consequences, with legal aid firm, Duncan Lewis Solicitors, faced with a knife attack in late October after Patel’s conference speech and a disingenuous Daily Mail article on Duncan Lewis’ legal aid fees brought attention to human rights lawyers.(5) Justice Secretary, Robert Buckland, has also propagated the tired myths that the HRA only provides help to criminals in a recent Daily Telegraph editorial announcing the review.(6)
Then there are the wider government assaults on judicial checks and balances. As Doughty Street barrister, Adam Wagner, elucidates it is not so-called “activist lawyers” that the government is attacking but the laws and the system itself which constrain their actions and provide scrutiny.(7) Hence government reviews are not just limited to the HRA but also judicial review, through the ongoing Faulks Review into Administrative Law, which is exploring how JR impinges on the executive rather than exploring its successes. Its terms of reference, which looks at restricting who has standing to bring claims against government and public authorities in the courts, suggests a desire to make it procedurally more difficult to contest potentially unlawful executive actions.(8) Its chair, Lord Faulks, a former Conservative minister, has already called for prerogative powers to prorogue Parliament to be made non-justiciable through legislation following Miller/Cherry in 2019. (9) Faulks even went so far as to call for Britain to leave the Council of Europe and the ECHR in 2017, which would make the UK, alongside authoritarian Belarus, one of two European countries not within the Convention (even Russia is a signatory to the ECHR). Faulks’ views on limiting a supposed incursion of the courts into “political territory” aside (prerogative powers have been viewed as justiciable by the courts as far back as 1984 in the GCHQ case), what the Faulks Review and the HRA review suggest is a desire to curb checks on the executive, as comments from Dominic Cummings surrounding “sorting the judges out” following Miller/Cherry also exemplify.
Terms of reference and membership of the review:
The terms of reference of the HRA review does little to dispel this notion. The HRA review is framed in such a way as to problematise the HRA. As such, the panel is to consider whether the HRA “draws domestic courts unduly into questions of policy”, playing on the popular line of Conservative politicians that the courts have been influencing policy, though this is only the case if there is also a legal question.(11) This was perhaps clearest during the Shamima Begum case, where the legal question was whether Begum had the right to enter the UK in order to appeal the revocation of his citizenship by Sajid Javid in 2019, but where Tory politicians framed it as a question of security and not basic legal rights. Thus, the review also precludes consideration of how the HRA has worked well, including analysing whether it has been an effective means of protecting people’s human rights. As such there is no mention of how the HRA has protected rights of individuals, which is the ultimate point of the act and one of its successes, empowering Windrush victims and Hillsborough victims in successful legal action against egregious abuses by government and police, for example. (12)
Likewise, the membership of the panel does little to reassure those who want human rights protected. There are no outspoken defenders of the Human Rights Act on the panel. There is, however, at least one vocal critic of human rights law and judicial review in the UK on the panel (though the rest of the panel has less strongly held views and are from government lackeys). The individual, Sir Stephen Laws QC (Hon.), is a senior researcher at right-wing thinktank Policy Exchange and writes for its Judicial Power Project.(13) Policy Exchange is widely noted for being one of the least transparent thinktanks in who it receives funding from. Its Judicial Power Project, which perhaps should more rightly be called an executive power project, rails against increases in “judicial power” and seeks to abolish the Supreme Court, while also aiming to increase political involvement in judicial appointments, seeking to politicise judicial appointments, which are currently based on merit, and hence empower the executive (14). Laws himself has been critical of judicial review apparently encroaching into areas of policy during both Miller 1 in 2017 and following the prorogation case in 2019. It is unlikely that he will see the HRA as a positive step in promoting individual rights, therefore.
Conclusion:
There is a final point on this review, and it is one made deftly by David Lammy, Shadow Justice Secretary. Holding a review into the Human Rights Act during the midst of a deadly pandemic and the worst recession in centuries is “bonkers”(15). It seems not only callous, as human rights are attacked, but also out-of-touch, particularly with a court backlog caused by continuous cuts to criminal justice budgets since 2010 and exacerbated by a disease which makes physical court sittings all the more difficult, particularly when one-third of all courts in England and Wales have been sold by the Tories since 2010 (16). As such, this review is not only an attempt to curtail rights but seems also a calculated act of vengeance when the government’s resources could be better placed elsewhere. While we should wait for the panel's report in Summer 2021 before judging too harshly, based on the current political climate, Buckland's equivocation on whether submissions to the panel will be published and transparent to the public (17), and historic animus towards the HRA from Tory politicians, the situation does not look promising for human rights in the UK.
References:
Conservative Party Manifesto - https://assets-global.website-files.com/5da42e2cae7ebd3f8bde353c/5dda924905da587992a064ba_Conservative%202019%20Manifesto.pdf
https://eachother.org.uk/what-is-the-human-rights-act-and-why-does-it-matter/
May on cats - https://www.bbc.co.uk/news/uk-politics-15160326
Priti Patel's speech transcript - http://www.ukpol.co.uk/priti-patel-2020-speech-at-conservative-party-conference/
Terror charge over alleged attack at immigration law firm - https://www.theguardian.com/uk-news/2020/oct/23/man-faces-terror-charge-over-alleged-attack-at-immigration-law-firm
Buckland's editorial - https://www.telegraph.co.uk/politics/2020/12/07/human-rights-act-not-infallible/
Adam Wagner, "It’s not “activist lawyers” this government hates, but the laws themselves" - https://www.newstatesman.com/politics/uk/2020/08/its-not-activist-lawyers-government-hates-laws-themselves
Faulks Review - https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review
Faulks's views on Miller/Cherry - https://www.conservativehome.com/thinktankcentral/2020/02/edward-faulks-the-supreme-courts-prorogation-judgement-unbalanced-our-constitution-the-commons-needs-to-make-a-correction.html
Faulks on leaving the ECHR - https://www.conservativehome.com/platform/2017/04/edward-faulks-this-opportunity-to-repeal-the-human-rights-act-quit-the-echr-and-bring-justice-home-may-not-come-again.html
HRA review terms of reference - https://www.gov.uk/guidance/independent-human-rights-act-review
JPPR about page - https://judicialpowerproject.org.uk/about/
David Lammy editorial - https://www.telegraph.co.uk/news/2020/12/08/tories-used-understand-importance-human-rights/
Courts in crisis: third of all court-houses sold off - https://www.thetimes.co.uk/article/courts-in-crisis-third-of-courthouses-sold-off-bqtm5m57j
Lammy's question on whether submissions and the report of the review will be published in full - https://twitter.com/DavidLammy/status/1336298237838422018
Further Reading:
- Amnesty UK press release on HRA review- https://www.amnesty.org.uk/press-releases/amnesty-warns-giant-leap-backwards-human-rights-act-threatened
- https://labourlist.org/2020/12/why-the-new-independent-review-of-the-human-rights-act-is-worrying/
-Head of Cambridge Law Faculty, Mark Elliot on Faulks Review - https://publiclawforeveryone.com/tag/faulks-review-of-judicial-review/
-Alex Dean, "Is Parliament really Sovereign?" - https://www.prospectmagazine.co.uk/politics/is-parliament-really-sovereign
-Conor Gearty, "The Overseas Operations Bill: a licence for atrocity" - https://www.prospectmagazine.co.uk/politics/overseas-operations-bill-armed-forces-military-human-rights-law-labour-party
-David Lammy, "By examining judicial review, the government seeks to enhance its own power and diminish yours" - https://www.prospectmagazine.co.uk/politics/by-examining-judicial-review-the-government-seeks-to-enhance-its-own-power-and-diminish-yours
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