I was interested to read today that Former Court of Appeal judge Sir Peter Gross has been appointed to lead an independent review of the Human Rights Act 1998. A panel of 8 is expected to report its findings by next summer. The motivation? The government wants to examine whether the 1998 act - which allows UK nationals to rely on the European Convention of Human Rights (ECHR) in domestic courts - is working effectively.
The BBC article states that the panel, led by Sir Peter, “is expected to evaluate whether UK judges are being drawn into policy matters, traditionally decided by politicians”. I thought this was particularly interesting given the recent Court of Appeal decision in a judicial review claim based on the legality of the Covid-19 lock down regulations. The Court of Appeal found that the regulations were within the government’s statutory powers and did not breach ECHR. It could not be said that the government had acted irrationally given that the final decision to issue the Regulations was ultimately a political one taken following expert advice. It also found that any breaches of the Human Rights Act 1998 were either unarguable given the facts or were justified. This decision highlights the extent of the court’s role in such cases and in this particular case, it was found ultimately, to be a matter of political judgement unsuited to determination by the courts.
Anyone advising on or navigating the world of employment law will watch this review with interest. The Human Rights Act protects workers’ rights and freedoms so long as they work in the public sector. While those in the private sector are not covered by the Human Rights Act, many of these rights are incorporated into general employment law such as the Equalities Act 2010, which applies to all employees. Any decision made by an Employment Tribunal has to follow the principles set out in the Convention. In many cases, an employer has to balance the rights of the individual against its own legitimate and/or public health interests. Mandatory covid testing is one such hotly debated topic. For more comment on this, please read the recent post by my colleague Anna Dabek https://blog.anthonycollins.com/post/102gkp0/mandatory-covid-testing-the-employee-is-refusing-to-take-a-test.
While previous Conservative governments had promised to replace the Human Rights Act entirely with a new Bill of Rights, the 2019 Conservative Party manifesto said it would only be "updated". Recent Brexit negotiations have indicated that a trade and security deal would include a commitment by the government not to “materially alter the spirit” of the Human Rights Act. It remains to be seen what light this review will shed on the Human Rights Act.
The government insists it remains committed to the European Convention - which includes articles on fair trials, freedom of expression, free elections and privacy - but wants to look at its application in the UK. It says the case law of the European Court of Human Rights in Strasbourg has evolved over time and it is right to look at how British courts respond.