No changes required to Human Rights legislation, says Faculty

The Human Rights Act 1998 is working well in practice and does not require to be changed, says the Faculty of Advocates.

Responding to the UK Government’s Independent Human Rights Act Review’s Call for Evidence, the Faculty said that the relationship between the domestic courts and the European Court of Human Rights works well, and does not require reform.

The Faculty noted that while domestic courts were under a duty to take the jurisprudence of the European Court of Human Rights into account, they were not under a duty to slavishly follow the decisions of the Strasbourg court.

It added: ‘This allows for the domestic courts to reach a different outcome in a particular case than the ECtHR may do. By and large the domestic courts have adopted an approach of “no more and no less than Strasbourg” and have generally not departed from clear and consistent jurisprudence of the ECtHR.’

While the Call for Evidence sought views on whether the courts have been drawn unduly into matters of policy, the Faculty noted that when human rights issues arise in cases before the courts, judges are not acting as policy makers but, instead, are simply fulfilling their proper judicial function of determining disputes in accordance with the law.

It said: ‘Although some human rights cases may be more controversial and attract more publicity than other cases, that is not an indication that the courts are being unduly drawn into matters of policy. It simply reflects the potentially difficult nature of the subject matter. Those relying on human rights are often among the most vulnerable members of society. Examples include children at risk, immigrants, refugees, those with mental health difficulties, those who are homeless or live in sub-standard accommodation, those living on benefits or in poverty, people who hold particular religious or political opinions, and offenders.’

The Faculty noted that when seeking to read and give effect to legislation in a way which is compatible with the European Convention on Human Rights, the courts are respecting and giving effect to the intention of the UK Parliament in enacting section 3 of the Human Rights Act 1998.

‘Where the courts apply section 3, no matter the outcome, Parliamentary sovereignty is at all times preserved. If Parliament does not agree with the court’s interpretation or conclusion, then Parliament is free to pass legislation to overturn the decision’ the Faculty stated.

You can read more of the Faculty’s response here.