The Human Rights Act is not infallible

The concept of fundamental human rights is a profoundly British one. From the signing into law of the Bill of Rights in 1689, to the British lawyers who helped to write the European Convention on Human Rights, we have led the world on this issue for centuries.

The protection of these basic but important rights has become a beacon for modern societies like ours, signifying a relationship between states and individuals that is built on mutual trust and respect. We should be proud that they have stood the test of time in our country.

The evolution of our legal system has helped to protect them through the ages. Our organic constitution – made up of various pieces of legislation, common law and convention – prevents us from taking the ill-judged view that an effective legal framework can be captured by a moment in time. Instead we find strength in its adaptability.

The Human Rights Act (HRA) was enacted to give further domestic effect to the protections in the European Convention on Human Rights, thereby reducing the need for people in the UK to take their cases to the Court in Strasbourg. It has now been 20 years since the HRA came into effect. The case law of the European Court of Human Rights has continued to evolve over that time, affecting the relationship between national authorities and Strasbourg. Over the past 10 years, reforms mean the Strasbourg Court has in some areas given greater deference to national authorities. It is only right that we should ask ourselves how should our domestic courts should respond.

The HRA also brought with it the ability of the domestic courts to, in effect, re-write Acts of Parliament to ensure that they comply with the ECHR. This has not always been limited to minor, uncontroversial technical changes. For example, in 2001, the HRA was used to essentially strike down the rape shield which had banned the cross examination of rape complainants on their past sexual behaviour. The court held that this law was not compliant with the HRA as it infringed on the right to a fair trial, and used its power to re-write this legislation, adding exceptions to the rape shield law.

Courts can make a declaration of incompatibility with the ECHR, leaving it to our Sovereign Parliament to decide whether, and if so how, the incompatibility should be remedied. It is surely worth asking whether, and if so how, such important and controversial decisions should be returned to parliament.

Acts of Parliament are not set in stone and any one Parliament cannot bind its successors. Now is the right time to take a fresh look at the Human Rights Act, see how its provisions are operating and consider whether the framework could be improved.

As Lord Chancellor, I am a successor to Sir David Maxwell Fyfe, who was instrumental in the careful drafting of the Convention in 1950. I think we honour his contribution to the basic rights contained in that document, as well as the political traditions that he and I share, by committing to re-examine the way they work today.

Let there be no doubt that this government remains committed to human rights and that our Parliamentary democracy must continue leading the world in this area of the law. We believe that an independent review, led by the highly respected former Court of Appeal judge, Sir Peter Gross, is best placed to determine whether there are ways in which the HRA can and should change.

The Government does not have any preconceived ideas about the review’s findings, but we are looking for options and there are some specific areas where we would like to see a focus – including whether the Act can result in judges being drawn, unduly, into matters of policy as well as law and whether they have struck the right balance between re-writing Acts of a Parliament and making a declaration of incompatibility.

Reviewing the Human Rights Act is a huge undertaking. These are complex matters of law that interact with our most basic rights. It is precisely because we want to ensure that the Act protects those rights in the most effective way that this Review is taking place.

Sir Robert Buckland QC is Secretary of State for Justice