Minutes from #YLALVirtual 27 January 2021: Roundtable on the Independent Human Rights Act Review (IHRAR)
On Wednesday 27 January 2021, Garden Court Chambers hosted a #YLALVirtual roundtable about the Independent Human Rights Act Review (IHRAR). The roundtable collated evidence from the legal aid frontline about the impact of the HRA on UK law as well as discussing how best to respond to the IHRAR call for evidence in order to protect our beloved HRA. Lucie Boase of Hodge Jones & Allen and Tara Mulcair of Birnberg Peirce, both YLAL Committee members, chaired the roundtable.
Roundtable participants:
· Aarif Abraham, a barrister at Garden Court North
· Alice Cullingworth, a solicitor at Rook Irwin Sweeney
· Donnchadh Greene, a barrister at Doughty Street Chambers
· Zehrah Hasan, a barrister at Garden Court Chambers
· Mark Hylands, a solicitor at DPG Law
· Jessica Jones, a barrister at Matrix Chambers
· Barbara Likulunga, a solicitor at the Bristol Law Centre
· Emma McClure, a solicitor at Swain and Co and YLAL committee member
· Stephanie Needleman, a JUSTICE lawyer
· Siân Pearce, a Solicitor at Asylum Justice
· Bethany Shiner, Middlesex University lecturer.
· Eilidh Turnbull, a Human Rights Officer at the BIHR (British institute of human rights)
· Katy Watts, a lawyer at Liberty
The first topic for the meeting was the relationship between the domestic courts and the European Court of Human Rights (ECtHR). Under s2 of the Human Rights Act (HRA), domestic courts are not bound by ECtHR caselaw but are required to take that caselaw into account. The IHRAR review is welcoming views about how this relationship is working and seeking recommendations for change.
Aarif Abraham spoke first and was unequivocal in his opinion that the relationship between the UK courts and the ECtHR is working well. He struggled to see how it could work better. He explained that there are formal and informal mechanisms for states and the ECtHR to engage in dialogue to help reform both the ECtHR and the ECHR. For instance, there is a biannual meeting of States and the ECtHR to discuss what substantive and procedural changes should be made to the ECtHR’s decision-making processes. These meetings have led to fundamental reform of the ECHR system such as Protocol 14 which reinforced subsidiarity and the margin of appreciation accorded to states and Protocol 16. Although the UK has not signed up to Protocol 16, it would allow the Supreme Court to request non-binding advisory opinions from the ECtHR. This would reduce friction on important legal issues between a national court and the ECtHR. Abraham pointed out that as our national courts faithfully apply the ECHR domestically, the UK has very few cases admissible to the ECtHR. In 2019, there were only 111 applications to Strasbourg of which only 7 were admissible. This was the lowest number of applications in 2019 per head of population. Abraham argued that in reality, the ECtHR has actually abrogated its role as arbitrator of the ECHR giving their decision-making power to the domestic courts due to systematic challenge from Member States sadly including the UK.
He concluded that we should help bolster the ECtHR and provide it with further resources. The ECtHR has jurisdiction over 835 million people at a cost of just £60 million per year. As the 6th richest economy in the world, the UK can spare 7p per head of its population per year to uphold international rule of law.
Siân Pearce echoed Abraham in saying that the relationship is working well pointing out that a particular advantage of the current, centralised arrangement is that it creates consistency across the devolved nations. This is particularly important given the approach taken to the powers and rights of devolved assemblies after the UK’s withdrawal from the European Union (EU). She believes there is a strong argument for keeping the UK courts’ relationship with Strasbourg centralised because based on the legislation enacted with other international instruments, the devolved legislatures undertaking their own human rights legislation would create significant inconsistency across the UK. Pearce believes it is therefore, important to emphasise to the IHRAR, that the implications of changing the current settlement would have different effects across the UK.
Zehrah Hasan premised her response by pointing out how the questions asked in the IHRAR are extremely leading. She then stated that dialogue between the UK courts and Strasbourg is not just a form of accountability but is also part of a process of conceptualising and legitimising Human Rights concepts. She believes that in our response to the IHRAR, we need to give clear, positive examples of how well the dialogue is working. She gave an example of dialogue between the courts using art 3 ECHR and the issue of removability where an applicant is seriously ill. The House of Lords approach in N v SSHD was that removal is only unjustified if the applicant is at death’s door. The ECtHR case, Paposhvili, relaxed that test so that it is now about whether the applicant would face a serious or rapid decline in their health which would reduce their life expectancy. Last year in AM v Zimbabwe, the Supreme Court followed Paposhvili holding the approach in N v SSHD was unduly narrow. Hasan said that this decision reflects how our conceptions of human rights are constantly evolving and how effective this dialogue can be in ensuring necessary and significant shifts in UK law.
Alice Cullingworth, having conferred with her colleagues, said that they all agree that the current system works well and can see no need for reform in this area. She gave the example of the CNC case in the Upper Tribunal which concerned the exclusion of a child with special educational needs from school owing to challenging behaviour stemming from their autism. The court found UK law incompatible with the ECHR and thus, the HRA has strengthened the protection of disabled children in schools.
Jessica Jones believes that the questions in the IHRAR are leading respondents to the answer that the ECtHR has too much power over how UK courts and Government make decisions. She argues that the prisoner voting rights saga offers a strong rebuttal to this because the ECtHR held that UK prisoner voting law breached the ECHR in 2005, yet in 2021, the Government still have not removed the offending legislation from the statute book. Jones emphasised the importance of using examples to show that in reality, the ECtHR does not have too much power and the Government retains significant leeway.
The panel then considered if there is a need to amend s2 HRA. Stephanie Needleman was adamant that amendment is not needed. The duty to take into account is operating as the words describe. There are now many
examples of the courts deviating from the ‘mirror principle’ pronounced in Ullah. For instance, Lord Wilson’s judgment in Hallam proves that the courts do not slavishly follow Strasbourg. Mark Hylands concurred with Needleman. The only amendment to s2 HRA he would propose would be to reinforce the idea that judges can go further than the ECtHR, particularly in areas where Strasbourg has yet to rule. He discussed the ECtHR case of Al-Khawaja and the domestic case of Horncastle. The UKSC refused to agree with the ECtHR’s judgment in Al-Khawaja on the basis that it failed to appreciate the nuance and detail of UK legislation on hearsay witness evidence. The SC departed from the mirror principle and invited Strasbourg to reconsider, which they did in the Grand Chamber hearing of Al-Khawaja. Hylands argues that this proves that dialogue under s2 is not all one way and that Strasbourg do sometimes yield to our courts.
Next, Katy Watts gave her opinion on whether the domestic courts are capable of applying the margin of appreciation. She believes that they can and often do give the Government a wide margin of appreciation particularly in benefits cases. For example, the ‘2 child rule’ litigation. She questioned whether in responding to the IHRAR, YLAL should adopt a full-throated defence or a more strategic approach. She was unsure whether we should give examples that prove the courts already give the Government a wide margin and do not slavishly follow Strasbourg or give examples of where the courts have refused to accept that something is outside their remit but now it is clear that they came to the right decision.
Next, Mark Hyland considered whether the current approach allows for sufficient judicial dialogue between the domestic courts and Strasbourg. He explained that judicial dialogue is not a fancy version of MSN for judges but a dialogue over time with domestic judgments commenting on Strasbourg rulings and vice versa with the view of coming to a settled opinion. Despite working well, he believes the Strasbourg backlog is an issue hindering its effectiveness. This means it can take a long time to hear the next case that is relevant to the right being discussed making it difficult for domestic law to change. He also lamented that the UK has not signed up to Protocol 16 which would let the UK SC ask the ECtHR for advisory opinions.
Hasan then highlighted the fact that there is a public perception that UK courts blindly follow what Strasbourg says which overlooks the reality of how conservative and careful our courts are. She believes it is therefore, imperative that we correctly strategise our response to the consultation and make our views clear. She emphasised the importance of different groups explaining why Human Rights are important and why in fact, the UK system doesn’t go far enough at the moment.
The roundtable then moved on to the next topic of the consultation: The impact of the HRA on the relationship between the courts, Government and Parliament and particularly whether the courts have been unduly drawn unduly to matters of policy and any recommendations for change.
Eilidh Turnbull was frustrated and concerned that the review does not mention the positive impact the HRA has had on people’s everyday lives and worries this is a big risk for this review. She believes that, as responses to the IHRAR will be published, it is important that responses highlight the HRA’s importance and value. She explained that the HRA was designed to ensure the roles of the legislative, executive and judiciary are properly balanced. The HRA ensures that individuals can seek justice from the courts while still respecting parliamentary sovereignty. The HRA also ensures that everyone can expect a basic level of treatment from public services. For example, s3 HRA ensures that public decision makers such as the police and social workers when applying legislation must aim to make their decisions Human Rights compatible. She also highlighted that the rights in the HRA are completely interwoven into the devolution arrangements and that this must be taken into account when responding to the IHRAR. She believes that although it is important that we campaign for increased human rights protections, we must remain careful to protect the HRA and point out how effective it currently is.
Donnchadh Greene, like the other panellists, was irritated by the review’s leading questions particularly in the way it implies courts are unduly drawn into matters of policy. He asserts that human rights are borne out in policy and that human rights cannot exist in the abstract. Greene did differ from Turnbull’s approach in that he finds the balance is bad. He believes the courts are afraid to be drawn into assessing policy rather than the HRA preventing them from doing it. He highlights that human rights are inherently undemocratic and that over-respecting the government is problematic. He asserted that the courts need to be braver and less deferential to the Government particularly when using their powers under s4 HRA to make a declaration of incompatibility.
The next question was about whether any change should be made to the ss. 3 and s4 HRA framework. Katy Watts reiterated Turnbull’s point that the although HRA expressly retains parliamentary sovereignty through ss. 3 and 4 HRA, the courts remain reluctant use ss. 3 and 4. Both are weak powers that do not undercut the political freedom of Parliament to legislate to reverse a court decision or ignore a declaration of incompatibility under s4 HRA. She believes that the courts should use these powers more strongly.
Next, Bethany Shiner spoke and highlighted her fellow panellists’ tension between wanting to defend the HRA from any reduction or dilution of the protections afforded by it while also recognising that there have sometimes been very unsatisfactory decisions based on problematic reasoning that is too deferential to Government. She believes that it is important to address this conflict in our responses to the IHRAR. She accepted that the HRA does not operate perfectly and does not always reach decisions that protect human rights. She then considered whether the courts have gone too far in their use of s3 HRA to interpret legislation in a way compatible with the ECHR. She like the rest of the roundtable, was critical of the leading nature of the question which she felt was framed with an absence of understanding as to how the HRA operates.
Siân Pearce then said that it is worth raising examples in forming a response to the IHRAR of where Parliament’s enacted intention was clear and was upheld by the courts despite human rights challenges. For example, the courts allow little leeway for art 8 challenges to prevent deportation, which is explicitly what Parliament wanted. She suggests that while there may be concerns about how the HRA is working, it may be tactically advantageous to highlight examples where Government have got what they wanted as this may convince the Government that there is no reason to amend or scrap the HRA.
Next, the roundtable discussed declarations of incompatibility under s4 HRA and whether they should be more prominent at the interpretative stage or remain a measure of last resort. Greene was clear that the courts should make more use of s4. He argued that the courts should not reinterpret legislation as this can have unforeseen, unintended consequences. Hylands argued that s4 should not be part of the interpretative stage. While he agreed with Greene that courts are in no position to legislate so should use s4 more often, he felt that if the Government intends to make s4 the primary remedy available under the HRA, then this is problematic
as s4 does not provide an effective remedy for individuals. It also does not put an obligation on parliament to change the law. He worries this will make rights illusory as they are pointless unless you can access and enjoy them.
Next, Jessica Jones reflected on how courts have dealt with subordinate legislation that is incompatible with the HRA. She explained that when confronted with incompatible subordinate legislation, the courts usually make an s4 declaration despite having the power to read down subordinate legislation or quash it. She concluded that change was probably not necessary but that she would like to see the courts reading down and quashing more frequently. She did believe however, that clarification of the extent to which the courts can make general declaration about the incompatibility of subordinate legislation in individual cases would be a good amendment to the HRA.
Jones then considered the HRA’s jurisdiction. She believes that the HRA’s current jurisdiction which is predominantly territorial but also covers situations where the UK exercises power and control over a person overseas, has some serious defects and limitations. She explained that where the Government makes a decision to deprive a person of their citizenship, if that person is outside the UK’s jurisdiction (for example people in Syrian camps), the HRA gives them no protection. The Government has adopted a policy that they will make decisions as if art 2 and 3 of the ECHR apply but no other rights. While these rights are important, Jones is concerned as other rights are also important. She highlighted that this policy does not protect people who were trafficked out of the UK.
Next, Emma McClure considered what the real motivation for the IHRAR is. She concurred with earlier speakers that this is not a well-intentioned review that wants to protect the HRA. She highlighted that as both Lord Neuberger and Dominic Grieve, when giving evidence to the Parliamentary Human Rights Committee, said that the HRA has been entirely beneficial to the UK, it’s not just the ‘bleeding heart liberal lawyers’ that think this is a strange time to be having the review. The leading questions in the review support her concerns that the Conservatives’ manifesto promise to ‘update’ the HRA means they intend to weaken or scrap it.
Barbara Likulunga then considered how to protect the HRA. She said that there is a lack of understanding of how the HRA affects ordinary people. She believes that that the solution is to increase public engagement using clear and uncomplicated language to make human rights accessible and also start public legal education early. Turnbull then built on Likulunga’s comments stating that to defend the HRA we need to keep human rights real, relevant and about people. She further stated that as lawyers we need to engage with the wider impact of the HRA beyond the courts, emphasising that the HRA creates a framework that ensures accountability and better decision-making. She concluded by saying that non-lawyers need to speak up for the HRA and why it matters to us all. To do this, we need to ensure this discussion of law is made as accessible as possible and speak outwardly so as to gain widespread support for the HRA. She highlighted that the BIHR aims to make HRA accessible to ordinary people.
Cullingworth also stated the importance of speaking about clients’ success stories in an accessible way. She thinks the key to improving public perception is to talk about various areas of law where the HRA has made a difference. Abraham then commented that since its enactment, the HRA has been threatened by the Conservative party. He believes that ordinary people should be able to make evidence submissions to the IHRAR and that a substantial number of submissions from ordinary people would make the government reconsider their course of action. Katy Watts followed up by talking about the fact that Liberty are coordinating a response that will uplift the voices of those who have used the HRA. She implored any practising solicitors with clients who have used the HRA to consider filling out Liberty’s public letter to the Human Rights Act review.
Hylands agreed with the other panellists. He feels that the ECHR has done so much for everyone, yet the legalistic way that it is discussed by lawyers makes it hard for the public to understand its impact. He believes that the best approach is to be radical and suggest ways to make the HRA better. McClure commented that we need to give examples of how the HRA has helped people in a way that is compelling to them. She argues that we go for a full-throated defence of the HRA because of the failure of the more tactical Brexit remain campaign.
Lucie Boase concluded the meeting by thanking attendees and panellists and hoping that the HRA finds its place in the public’s hearts.
We are really grateful to YLAL member Hannah Heilbuth for these very comprehensive minutes.