Human Rights Joint Committee: Dean Russell questions Lord Chancellor about the Human Rights review

Updated: Apr 28

Dean Russell: Lord Chancellor, thank you so much for joining us today. My questions are related primarily to the government plans to update the Human Rights Act.

Given your background, having been chair of the Conservative Party Human Rights Commission and having sat on the Joint Committee on Human Rights, as well as in your role as Lord Chancellor, I am sure without doubt that you recognise the important role that human rights play in protecting the most vulnerable in our society. I was interested in understanding, from the work you have done, how the position might have changed with regard to the European Convention on Human Rights and the Government’s stance on that.

Robert Buckland: I can reassure you, and indeed the whole Committee, of the Government’s continued commitment to our membership of and support for the European Convention on Human Rights. It is the 70th anniversary of its incorporation. It was British lawyers who helped lead the team. In fact, one of my predecessors, Lord Kilmuir—Sir David Maxwell Fyfe as he then was—helped to lead the drafting of this important document, which resonates through the years and enshrines fundamental rights that have been adhered to increasingly across Europe as the Council of Europe has expanded to include more countries.

It is in that tradition of helping to enshrine rights and protect liberties that I sit as Lord Chancellor, not just domestically but in our international obligations. It is the duty of government, in being the guardian of rights, to make sure that they are absolutely in the right place and right space when it comes to our domestic law. That is why the manifesto commitments that we made before the election, which successfully returned a Conservative Government, are ones that are entirely within that tradition. They are entirely within the duty that we all have to make sure that the legislative framework is working in a way that helps all of us and enhances the reputation and role of human rights and civil liberties as the bedrock underpinning a civilised, democratic and free society.

Dean Russell: You wrote to the Committee previously, saying that the Government remained committed to the ECHR. If you are satisfied with the European Convention on Human Rights, why would the Government consider any amendments to that? Why would you not just cross it over as it is to English courts right now, rather than making any changes?

Robert Buckland: There is a difference between the convention itself and any domestic framework that we have that helps the enforcement or application of it. By that I mean the Human Rights Act of 1998. Prior to its coming into force, some 20 years ago this year, the convention rights applied here. The question was whether there was an adequate domestic framework for their enforcement. It was very much felt that there was not, hence the coming into force of these provisions. They are now 20 years of age.

It is absolutely within the traditions I have just mentioned for the Government to look at them again to make sure that they are working in a way that benefits the majority of us. We will make sure that the mechanisms are effective, that our courts feel they are able to apply legislation and indeed to take decisions within the margin of appreciation that we all know exists as part of the case law of the Strasbourg court, and that we have that sense of widespread support and an enhancement of the role of human rights, not just within our law but within our wider society.

It is important that we remember the context within which the Government seek to act here. It is all about enhancement and protection, rather than anything that I know some commentators might interpret as some sort of attack or wish to undermine the very principles that we ourselves helped to create 70 years ago.

Dean Russell: In your recent letter, you stated specifically that the Government are committed to updating the Human Rights Act. I would be really keen to understand any specific examples of how you consider the Human Rights Act to be out of date. Could you give some specifics on that, please?

Robert Buckland: It is important to remember that, as the Act bedded in, we had developing case law around it. After 20 years, it is only sensible for us to take stock of where things have got to and to ask some questions. Any review will be very much an independent process of mature reflection, rather than a review that has predetermined conclusions that are set by government. That is not my intention at all and that is certainly not how any review would work.

We can perhaps start by coming to Section 2 and the issue about the courts taking into account the jurisprudence of Strasbourg, how that particular phrase has worked, how it has been applied domestically and whether there are issues with it. Questions asked about that over the years. Are we still in that same place? Is there a problem to be solved? We can also then look at the general framework in Sections 3 and 4. That is the framework within which incompatibility or otherwise is determined. All those questions are entirely legitimate ones.

It would not be necessary for us to revisit the rights themselves. They have been clearly set out in the convention and then reflected, to large degree, by the Human Rights Act framework itself. I am more interested in the mechanism and the way in which the case law of Strasbourg is used and applied here in the UK. They are entirely proper questions to ask and ones that I very much hope will occupy any review that takes place.

Dean Russell: From the response you just gave, am I correct in understanding that you do not see anything coming out during the review but perhaps only adding to it, or did I misunderstand that?

Robert Buckland: I am not going to pre-judge what the review might do or not do, or what its findings might be. I am interested in a review that looks at the mechanics of the Human Rights Act, the way in which it operates and the way in which our domestic courts operate with the court in Strasbourg. There have been, I am glad to say, plenty of really good examples of judicial dialogue between domestic courts and the Strasbourg court over the last few years. That is something I strongly support. I want to make sure that it is in a good place or more needs to be done with respect to that.

We should be asking ourselves whether we have got parliamentary involvement in compatibility issues right. Is it too much of an ex post facto situation, whereby your Committee and others issue important reports or declarations are made at the doorstep of the passage of legislation, rather than in the initial stages? Those are legitimate and proper questions for us to ask. It may well be that Parliament’s role could be enhanced as a result and a product of any deliberations the review conducts. This is designed to be very much a mature reflection, rather than some knee-jerk response, which I would never support or endorse. Very much in the traditions of my role, as a guardian of human rights, I want to develop things further and see how we can improve the current situation.

Dean Russell: You mentioned the term “examples” earlier. I would be interested to know if you could name any specific instances where you think the Human Rights Act has been a problem.

Robert Buckland: We know some of the history of what we regard as some of the more difficult cases. It does not take too much imagination to cast our minds back to the prisoner voting issue, which in the end was resolved through the appropriate means, via the Council of Europe, but it took some 12 years to resolve. It generated a huge amount of heat and controversy and absorbed quite a lot of negative energy, which took away from, undermined and derogated from many of the beneficial effects of the human rights framework.

I can think of the Abu Qatada case, again a very lengthy set of proceedings that took many years to resolve. That was complicated by the fact that it involved another jurisdiction outside the Council of Europe area.

Those examples are just a few examples of how quite controversial cases with difficult subject matter can almost overwhelm the otherwise positive message that needed to be sent out about what the human rights framework can achieve. It is absolutely incumbent upon me to reflect on all that and to see whether there are things that we can do better in the operation of our own processes and whether we can make refinements and improvements.

Dean Russell: With regard to this review, is this it? If the review happens and anything gets implemented, now that this is within the control of government, are we going to see another review in five, 10 or 20 years? Is it going to be an ongoing case of reviewing it, or is it going to be a one-off?

Robert Buckland: The manifesto commits the Government to a course of action over a Parliament, so we are looking at a five-year period. I cannot commit any future Government to what they might or might not do in this area. It is right to confine myself to what we said in the manifesto and what we intend to do. Everybody on the Committee and in the wider audience can be reassured or informed that this is all about updating, refining and improving in the light of experience. Now we have had 20 years of that experience, the time is right to do this.

Dean Russell: Finally, in terms of the transparency of the review and the activity and the outcomes of this, could you explain some of the process there for me, please?

Robert Buckland: I am not going to outline in detail what has not yet been announced. I can say that it will be independent, that the panel that will be created will be diverse and will reflect, most properly, the fact that this is a United Kingdom issue, and that voices, opinions and influence from all corners are therefore absolutely essential in order to get that balance right and have diversity of thought. I do not want this to be a body that has a collective groupthink. I want that diversity of opinion very much to play a part in the deliberations of the review.

In time, I envisage that it will present a range of proposals and ideas to government which the Government would then consider in the round and develop their policy accordingly. The Government will not be bound by the findings of any review, but no doubt its views and processes will carry significant weight. Without going into the detail as to timescales and the precise product of any review, Committee members can be reassured that it will be a careful process, rather than government unilaterally coming up with its own ideas and proposals without thought and consultation.