As some readers may know, I have been involved in various modest ways with responding to the ongoing Independent Review of Administrative Law (IRAL). As part of an ESRC project with Maurice Sunkin and Theodore Konstadinides (University of Essex), I assisted The Law Society of England and Wales to produce its response to the panel, I have been collecting via the UK Administrative Justice Institute submissions made to the panel given its decision not to make them public, and I have drafted a number of posts via this blog on the IRAL (here, here, and here).
My purpose in this post is to provide some initial reflections on the Independent Human Rights Act Review (IHRAR), particularly to contrast it with the process and transparency of IRAL. In sum, though IHRAR has inevitable problems, I have been pleasantly surprised by some procedural and presentational decisions made thus far and I congratulate the panel on its good sense. For one, in contrast to Lord Faulks who had strongly and publicly expressed opinions at least tangentially related to matters which he was to consider (e.g. on the Supreme Court’s Miller II judgment, membership of the European Convention on Human Rights, and the role of the HRA), Sir Peter Gross – a retired Court of Appeal judge – has no obvious axe to grind on these matters and certainly has no public commentaries on party political blogs. This appearance of independence is welcome, though it does raise the usual questions about whether judges (retired or otherwise) should have such influence over policy development. For my part, I think it makes eminent sense for an ex-judge to Chair a panel considering such contentious changes to human rights law. This heated and live disagreement makes the appearance of independence much more important to maintain public – and particularly professional – trust.
Also welcome is the more balanced presentation of IHRAR’s call for evidence. Unlike IRAL’s call for evidence, which was arguably heavily tilted in favour of public bodies – its questionnaire was only sent to public bodies and appeared to linguistically encourage negative attitudes to judicial review – IHRAR’s call for evidence is, at least at first sight, encouraging. For instance, it recognises that there might potentially be some good aspects of what it is reviewing: ‘The UK’s contribution to human rights law is immense. It is founded in the common law tradition, was instrumental in the drafting and promotion of the European Convention on Human Rights (the Convention) and is now enshrined in the Human Rights Act 1998 (HRA).’ (p.4). In addition, the questionnaire is not merely directed to public bodies and ‘encourages the widest possible range of views from the public and interested parties in its consultations, across all four nations of the UK’ (p.4).
Moreover, IHRAR appears to have expressly learned from IRAL’s tilted drafting, commenting that: ‘The [terms of reference] have been drafted in neutral terms. The Review has no pre-conceived answers and intends to examine all the questions within the scope of the Review comprehensively.’ (p.4). I leave it to others to fully analyse IHRAR’s terms of reference and call for evidence, but on first glance there is something to this. Contrast section one of IRAL’s questionnaire, where a potential (hoped for?) answer is in the core of question: ‘[D]o any of the following aspects of judicial review seriously impede the proper or effective discharge of central or local governmental functions?’ (p.6), with theme one of IHRAR’s call for evidence, which relates to the relationship between domestic courts and Strasbourg: ‘We would welcome any general views on how the relationship is currently working, including any strengths and weakness of the current approach and any recommendations for change.’ (p.5). I am happier with this. There is no obvious imputed or desired answer and no obvious tilt.
Disappointing, though, is that, like IRAL, IHRAR’s call for evidence will only last for seven weeks (p.7). I very much doubt that this is sufficient time for fully researched and nuanced considerations of the HRA, except for those who are already experts on the Act or who have very strong pre-existing opinions on it. The risk is that, due to lack of time for careful thought, the submissions descend into the familiar binaries – the usual suspects for and against the Act but with limited opportunity for more cautious thought from contributors with no obvious pre-existing opinions.
Nevertheless, it is excellent that, unlike IRAL, IHRAR expressly intends its for call for evidence to be:
followed by engagement with interested parties once written submissions have been considered. We also intend to hold evidence sessions to ensure the widest possible engagement with the public. More details on when and how these sessions will be organised will be shared in due course.(p.7)
Expected to end in the summer of 2021, this process should assist in a deeper examination of the issues and I look forward to this engagement.
Also welcome is the transparency of responses submitted to IHRAR. In direct contrast to the approach of IRAL, IHRAR has stated that:
In the interests of openness and transparency, responses to the call for evidence will be published on the IHRAR website as soon as is practicable, with the respondent identified. If a respondent considers that exceptional circumstances provide reasons that their response should not be published, or that they should not be identified, they may request this.(p.8)
As many will know, due to IRAL’s decision not to publish responses, I have spent some of my time over the last several months collating these responses in an effort to bring some degree of transparency to the evidence and considerations which IRAL will take into account in its deliberations. It is welcome that, this time, what the panel should have done to begin with is not left to academia.
Naturally, it is not all happy news. One matter of concern to me is the potential interaction – or lack of it – between the IRAL and the IHRAR. In UKAJI’s submission to the IRAL, we called for the report produced by the panel to become a point of reference and learning for any future review of the HRA. Given the procedural changes noted above, I think that there has probably been some learning on the expectations surrounding transparency and I hope that UKAJI’s efforts on that front have contributed to that. However, given that both panels will be running more or less simultaneously, albeit with IRAL having a modest head-start, IHRAR cannot reflect on the substantive proposals produced by IRAL and make recommendations for the HRA in light of those.
This is important because – as I argued with Konstadinides and Sunkin and as Boyle and Camps have argued – human rights in general and the HRA in particular have an inevitable connection to judicial review and both must be seen in light of each other. I am also concerned that, should any legislative solutions arise from the report of either panel, that the reforms will be pursued via two separate Bills – one considering judicial review and one considering the HRA. The risk is that, like the panels themselves, executive and parliamentary thinking on these interrelated matters will become divorced and separated when they should be closely aligned.
Those are my thoughts for the time being. Inevitably, they will change depending on how the IHRAR process goes. Hopefully they will change for the better and will become increasingly impressed by the work of the panel, acknowledging that whether I agree with the eventual report and recommendations or not, it was a skilfully managed process that should be congratulated. Only time will tell and I look forward to the inevitably contentious debates in the months to come.
Lee Marsons, University of Essex
(Suggested citation: L. Marsons, ‘The Independent Human Rights Act Review (IHRAR) – a welcome change of tone but with concerns ahead’, U.K. Const. L. Blog (15th Jan. 2021) (available at https://ukconstitutionallaw.org/))