Barristers warn Government against breaching international law in changes to Human Rights Act

In its response to the Independent Human Rights Act Review, the Bar Council – which represents all barristers in England and Wales – urged “extreme caution”.

Key takeaways from the response:

 

  • The HRA has worked and continues to work well. The Act strikes the right balance between the court’s power to interpret legislation and Parliament’s power to make it or change it. (para. 114)
  • No changes to section 2 of the HRA, which plays a major role in “bringing rights home”, are required. The section, which requires domestic courts to “take into account” Strasbourg case law, has allowed UK courts to develop a nuanced and principled approach to that case law, rather than be bound by it. (para. 9)
  • However, there could be a statutory provision making it clear that UK courts could have regard to the caselaw of other constitutional courts. (para. 39)
  • Changing section 3 risks putting the UK in breach of international law. No change is needed to sections 3 and 4 (which deal with legislation being interpreted in a way which is compatible with the Convention rights) and “extreme caution” is urged on this issue. The Bar Council does not consider that the application of section 3 by the courts has illegitimately undermined the will of Parliament. Any amendment to section 3 would risk putting the UK in breach of international law. (para. 86)
  • The HRA has not replaced common law. The two are complementary. English courts are already able to ground their decisions on common law rights that may run in parallel to rights under the ECHR, and the HRA retained common law rules of statutory interpretation. (para. 70)
  • The HRA only made explicit what had always been implicit. The courts have always been responsible for determining the proper lawful scope of the powers of public administration. The HRA did not alter the relationship between the judiciary, executive and legislature of the UK. (para. 71)

 

Read the Bar Council’s full response here. Quotes available on request.


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