Jurisdiction(s):
United Kingdom

Human Rights Act 1998 reform: comparing IHRAR recommendations and government consultation, with implications for UK courts, Strasbourg, and parliamentary sovereignty

Published on: 14 January 2022

Published by a LexisNexis Public Law expert

Legal News

Article summary

IHRAR report

The IHRAR’s publication is an exceptionally comprehensive and highly impressive piece of analysis. It accepts as a fixed point the government’s commitment to remain a party to the European Convention on Human Rights (ECHR). This includes the ability of individuals to petition the European Court of Human Rights (ECtHR) in Strasbourg once domestic avenues of redress are exhausted. Throughout the IHRAR there is recognition that reforms restricting people’s capacity to enforce rights in the UK courts may prompt more cases going to Strasbourg, which would ‘run counter to the HRA’s original objective of bringing rights home’, rather than resolving matters within the domestic legal system. The IHRAR proposes only limited amendments to the HRA itself. They are notably restrained and incremental in nature overall. The principal ones are:

a modification to the test in HRA 1998, s 2, which presently states that UK courts ‘must take into account’ relevant ECtHR rulings. The change would require courts first to apply domestic statute and case law, and only then to take ECtHR case law into account when interpreting a Convention right
a change to HRA 1998, s 3, which currently requires courts to interpret legislation, so far as possible, in...

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