Joint Committee on Human Rights, The Government’s Independent Review of the Human Rights Act, Third Report of Session 2021–22 - Written evidence from Dr John McGarry and Dr Samantha Spence (HRA0056)

SPENCE, Samantha and MCGARRY, John (2021) Joint Committee on Human Rights, The Government’s Independent Review of the Human Rights Act, Third Report of Session 2021–22 - Written evidence from Dr John McGarry and Dr Samantha Spence (HRA0056). Research report for external body. House of Commons and House of Lords.

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Abstract or description

General:

The Human Rights Act 1998 works well and we suggest that any attempt to amend it should be viewed with caution.

In answer to the question in Theme 2 of the Terms of Reference of whether any change be made to the framework established by sections 3 and 4 of the HRA:

We do not recommend the amendment or repeal of section 3 which strikes the right balance between parliamentary sovereignty and incorporating the Convention rights into UK law.

Moreover, Parliament may intervene to correct legislation which has been interpreted in a way with which it disagrees.

The intention of Parliament is a contested concept and, as such, should not be used as a standard against which interpretations under section 3 are evaluated or (if section 3 were amended) governed.

The terms of reference ask whether declarations of incompatibility should be ‘considered as part of the initial process of interpretation … so as to enhance the role of Parliament in determining how any incompatibility should be addressed’. If this is suggesting involving Parliament in determining the meaning of legislation in a live case then we argue that this would be highly problematic in terms of separation of powers, the right to a fair trial under Article 6 and the sub judice rule. There would also be practical problems in deciding what Parliament’s involvement would be.

We suggest that, where a declaration of incompatibility has been made, the relevant Minister should be obliged to make a statement to the House of Commons as to whether or not the Government intends to amend the legislation in question.

Item Type:	Monograph or Report (Research report for external body)
Faculty:	School of Law, Policing and Forensics > Law
Depositing User:	Samantha SPENCE
Date Deposited:	20 Dec 2023 15:20
Last Modified:	21 Dec 2023 04:30
URI:	https://eprints.staffs.ac.uk/id/eprint/8009

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