Mishcon de Reya (“Mishcon”/ the “Firm”) has a long history of engagement with public causes and human rights issues. The Firm regularly acts for individuals and groups who assert that their human rights have been breached and has challenged the Government in cases where it has been alleged that executive action has been used to curtail people’s rights. Based on its experience of cases involving the application of the Human Rights Act 1998 (the “HRA”/ the “Act”) the Firm believes that the HRA is materially fit for purpose.
The Firm’s Data Science team has analysed data from the vLex Justis database of judgments, along with other data sources; its analysis has been used in support of this submission. The methodology applied is described in the Appendix to this submission.
The Independent Human Rights Act Review (“IHRAR”)” Terms of Reference suggest that, “under the HRA, courts have increasingly been presented with questions of “policy” as well as law.”1 It is undoubtedly true that there are occasions when the courts have been confronted with questions of policy, however, an analysis of the case reports demonstrates that the judiciary is acutely aware of the importance not to stray into areas of policy that are, rightly, the exclusive domain of Parliament. Such areas of policy include issues of national security and fiscal policy as evidenced by the cases of Bellmarsh and Carlile in which the courts were notably reluctant to interfere with the policy decisions in dispute. The HRA was carefully drafted so as to enshrine and protect the balance and separation of power between Government, the legislature and the judiciary. Rightly, in any given situation, power rests with Parliament to amend legislation and with Government to secure it a place on the Parliamentary agenda.
The Government’s political response to the euro-scepticism evident in sections of the print media and significant parts of UK society may have informed the focus in the Terms of Reference on the role of the European Court of Human Rights (the “ECtHR”). By way of example, the Attorney General stated in Parliament last year when discussing the purpose of the IHRAR: “What I object to… is any submission to the European Court of Justice, and I am committed to our manifesto commitment to looking at the Human Rights Act and updating it.” 4 The subtle conflation of the ECtHR with the institutions of the European Union may be politically expedient, but is legally and historically inaccurate. In this context, it is critical to remember the events that drove the UK’s commitment to the European Convention of Human Rights (the “Convention”) and the authority of the ECtHR, and the important part the UK played in its creation. The Council of Europe was established in the wake of World War II, specifically to promote and protect human rights. The European nations recognised the need for a legally enforceable instrument, bolstering 1948’s unenforceable United Nations’ Universal Declaration of Human Rights, in order to ensure the protection of human rights though a supranational court with the power to sanction nations that breached those rights. The British lawyer David Maxwell-Fyfe, Deputy British Prosecutor at the Nuremburg trials, was the rapporteur of the committee that drafted the Convention.
Despite last year marking the 75th anniversary of the end of World War II, the principles upon which the ECtHR and the rights enshrined in the Convention (the “Convention Rights”) were founded remain as important as ever. Mishcon’s role representing Deborah Lipstadt against the Holocaust denier David Irving is a reminder that we must not seek to downplay, or imagine ourselves now immune to, the atrocities of the past. Indeed, as global political leaders act in an increasingly autocratic fashion, we are seeing formerly fringe political groups gain traction within the mainstream electorate. The “Rights Brought Home” White Paper, setting out the case for the HRA, recognised the valuable opportunity the HRA would give the UK courts to act as leaders in safeguarding human rights across Europe: “rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law.” 5 At a time when global commitment to human rights appears to be in jeopardy we believe that this is a role that Government should be pleased to entrust to our internationally respected judiciary