Leave Human Rights Act alone, Faculty tells Government

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

Publishing its response to the call for evidence from the UK Government's Independent Review of the Human Rights Act, Faculty said that the relationship between the domestic courts and the European Court of Human Rights works well, and does not require reform.

In its submission, Faculty notes that while domestic courts are under a duty to take the jurisprudence of the Strasbourg into account, they are not bound to follow its decisions slavishly.

It adds: "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, Faculty notes 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 states: "It is our view that under the [Act] as presently enacted the roles of the courts, Government and Parliament have been carefully balanced and we do not consider that a case is made out for any significant change...

"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 substandard accommodation, those living on benefits or in poverty, people who hold particular religious or political opinions, and offenders."

Faculty further notes 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 s 3 of the 1998 Act.

"Where the courts apply s 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", Faculty points out.

Click here to read the full response.