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)

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.