As the deadline for submissions to Independent Human Rights Act Review (IHRAR) passes this week, the appropriate division of constitutional labour in respect of human rights protection continues to attract debate. The terms of reference for the IHRAR suggest a focus on the role of the courts in protecting rights under the Human Rights Act 1998 (HRA). In particular, it asks whether the roles of the courts, Parliament and the Government are appropriately ‘balanced’ in this respect. In our submission to the IHRAR we have highlighted that, in line with the structure and principles of the UK constitution, the HRA is designed to give Parliament a leading role in human rights protection. In spite of this, however, we have further noted that Parliament too often fails to undertake appropriate rights-related deliberation, scrutiny and engagement of legislative and policy action.

In this post we present preliminary findings from the CVRO’s research on Parliamentary engagement with rights during the COVID-19 pandemic. This analysis suggests that, as has been observed in other settings, Parliament has failed adequately to engage with the rights implications of the pandemic and responses to it. This includes human rights questions arising under the HRA. Building on this exemplar, we suggest that the critical question for the IHRAR is not whether the HRA has struck an appropriate balance, but rather how Parliament might be enabled more fully to engage with its rights-related functions and thus to ensure the division of constitutional labour envisaged in the HRA is achieved. 

Parliament’s leading role in protecting rights under the HRA

The HRA gives Parliament a leading role in developing human rights protections. It is Parliament that is given statutory responsibility to decide what human rights protections should be enacted in law. Section 3(2)(b) of the Act ensures that any judicial interpretation of legislation ‘does not affect the validity, continuing operation or enforcement of any incompatible primary legislation’. Section 4(6)(a) ensures that any ‘declaration of incompatibility’ issued by a court ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given’. Furthermore, should Parliament consider it appropriate, a judicial interpretation of legislation can be effectively reversed by the passage of amending legislation that clarifies Parliament’s position on human rights issues that arise. The key consequence of these provisions is to preserve the constitutional role of Parliament in law-making.

Parliament taking a leading role in developing rights protections is not only an integral feature of the functioning of the human rights framework as established by the HRA. It is also crucial for ensuring that the constitutional labour of rights protection is appropriately balanced between the different branches of state.  Human rights protection is a complex task that involves weighing different public interests and monitoring policy impacts on society. The complexities associated with this task mean that the protection of human rights should be underpinned by ongoing and informed deliberation. As a deliberative body with the power to call on any expertise it requires, Parliament is in a strong position to carry out such ongoing and informed deliberation. As a democratic body, Parliament is also usually uniquely placed in its proximity to society to monitor the human rights impacts of policy and legislation. This includes Parliament monitoring the human rights impact of the Government’s actions in order to hold it to account, and ensuring that policy is developed in line with human rights protections.  Parliamentary engagement with human rights can also serve to guide judges, as the judiciary discharges its role of interpreting legislation in accordance with human rights protections.

Is Parliament fulfilling its role in practice?  

A substantial body of research exists to suggest that, at least in respect of complex policy fields, Parliament does not always engage with rights in a manner that reflects its central role in rights protection and development under the HRA.  For example, academics have argued that Parliament rarely intervenes with substantial amendments to counter-terrorism legislation to protect human rights (see Horne and Walker, 2016). Others argue that Parliament’s role in the development of law protecting the right to non-discrimination has also been limited.  More generally, research suggests that there is a ‘democratic deficit’ in the development of rights protections due to a lack of Parliamentary engagement with rights (see Hunt, Hooper and Yowell (eds), 2015).

Research carried out by the CVRO suggests that similar patterns are discernible in the context of the COVID-19 pandemic. We note that human rights were mentioned in the Parliamentary debates on the Coronavirus Act 2020. However rights were not leveraged in such a way as to underpin any substantive amendments to the proposed legislation. Furthermore, the sense of urgency that prevailed around the passage of this Act closed off avenues for protracted and detailed pre-legislative scrutiny and debate. This in turn highlights the importance of integrating rights into ongoing processes of parliamentary scrutiny that followed the introduction of the Coronavirus Act 2020, such as through committee inquiries, PMQs, and so on. The Coronavirus Act 2020 is also only one of the laws that underpin the Government’s response to the pandemic. We further note observations that Parliamentary scrutiny of regulations passed under the authority of the Public Health (Control of Disease) Act 1984 during the pandemic has been weak (see Tom Hickman QC’s analysis here). The regulations represent the bulk of legislation passed relating to the pandemic. Such weak scrutiny is not conducive to Parliament ensuring that such legislation contains adequate human rights protections.

Such inadequacy is also discernible from a detailed analysis of two of the key modes of accountability and scrutiny in Parliament: inquiries by parliamentary committees and Prime Minister’s Questions (PMQs). These two modes of accountability are clearly different, with inquiries being usually more detailed and expertise-led and PMQs being a mode of ‘accountability by spectacle’ not renowned for meaningful scrutiny. However they are both critical and productive parts of parliamentary work in which, if Parliament were effectively engaged with rights protection and deliberation, we should expect to see recourse to human rights as framing, justificatory, and analytical aides. The very speedy passage of the Coronavirus Act 2020 and the heavy reliance on regulations rather than primary legislation have reduced opportunities for robust pre-legislative scrutiny of pandemic responses. In such circumstances, the quotidian modes of scrutiny represented by committee inquiries and PMQs are a crucial mode of understanding the complex questions that arise when considering the response to the pandemic against human rights standards.

a. Engagement with human rights by parliamentary committees under COVID-19

As an observatory project interested in parliamentary review, the CVRO has identified and analysed all 59 completed or ongoing committee inquiries on COVID-19-related matters that have taken place since 30 January 2020, the date on which the WHO first declared the transmission of COVID-19 to constitute a global health emergency. As part of this analysis, we have collected the terms of reference for each inquiry and assessed them for human rights engagement. This analysis suggests very limited human rights analysis or engagement by these committees:

• Out of fifty-nine COVID-19 related committee inquiries launched since the beginning of the pandemic, only two of the inquiries mention human rights in their terms of reference.

• Both inquiries were carried out by the Joint Committee on Human Rights (JCHR).

• Both inquiries carried out by the JCHR engaged very broadly in considering the impact on human rights of the pandemic and the Government’s response to the pandemic, and both focused almost exclusively on civil and political rights protected via the HRA and relevant international human rights law.

The findings show that, to date, the JCHR is the only parliamentary committee carrying out human rights assessments of the pandemic and responses thereto. This is notwithstanding the fact that inquiries that have clear connections to rights have been undertaken by other committees, including for example the Public Accounts Committee’s inquiry on government procurement and supply of personal protective equipment. The failure to engage with rights at all in the Terms of Reference of these inquiries, and indeed in resultant reports so far published, suggests that such inquiries contribute in only a very limited way to Parliament’s monitoring of human rights in the pandemic.

We also note that the breadth of each JCHR inquiry suggests the committee is currently facing a large burden of work as the only committee explicitly considering human rights impacts during the pandemic, and it will no doubt have to make decisions about which rights implications to consider in order to manage workload. This raises the possibility of gaps and fragmentation in terms of understanding in the fullest way possible the impact of the pandemic on rights, with holistic insight into the multi-factored and inter-related impacts of the pandemic and responses thereto being difficult to acquire. This limits Parliament’s insight into and engagement with rights as regards continuing or new pandemic responses, raising the possibility of rights-related inadequacies (e.g. in terms of PPE procurement and positive obligations relating to the right to life under Article 2, ECHR) coming before courts that would have limited guidance on parliamentary intent with respect to rights in determining such claims. In contrast, and by means of an example of good practice in engaging broadly with human rights analysis by a parliamentary committee, we note the Scottish Parliament’s Equality and Human Rights Committee’s Report on the Impact of the COVID-19 Pandemic on Equalities and Human Rights.

b. Engagement with human rights during PMQs under COVID-19

In addition to analysing committee inquiries, the CVRO has assessed Parliament’s engagement with human rights in all PMQs since 30 January 2020. In carrying out this analysis we organised the questions asked of the Prime Minister into a number of categories. First, we distinguished between ‘COVID-19 related’ and ‘non-COVID-19 related’ questions. A question was considered to be COVID-19 related if the questioner expressly referred to an issue in relation to the pandemic. For these purposes, we excluded questions which may have some relevance to the pandemic but which did not mention it. We then identified the COVID-19 related questions that were ‘human rights related’. In light of the potential breadth of the term ‘human rights’ we adopted a conservative approach in identifying where questions were human rights related, only including questions related to specific rights protected by the ECHR, ICCPR and ICESCR. Finally we identified those human rights-related questions that referred explicitly to human rights, including in this all questions that referred to ‘rights’ or ‘liberties’.

The results of our analysis are set out in Figure 1 below and were as follows:

• Out of approximately one thousand questions asked at PMQs since 30 January 2002, around half of the question were ‘COVID-19 related’.

• Of these questions, approximately three quarters (i.e. just over 400) were ‘human rights-related’.

• Of these questions, making up just over four hundred questions, only three questions explicitly referred to human rights.

Figure 1: PMQs under COVID-19

Notwithstanding the well-accepted ‘political’ nature of PMQs (which limits their usefulness as a mode of scrutiny), the scarcity of rights-engagement in PMQs across more than twelve months during the pandemic is striking.

The IHRAR should focus on empowering Parliament to engage with human rights

Our analysis of committee inquiries and PMQs suggests that, at least outside of legislative debates, Parliament’s engagement with the human rights impact of the pandemic has been inadequate.  As already mentioned, similar observations have also been made in a range of (sometimes controversial and often complex) fields like counter-terrorism and anti-discrimination. Where parliamentary engagement with rights is inadequate, any adverse judicial findings under the HRA should be understood against that background bearing in mind the role assigned to Parliament as a critical human rights actor under the Act.

Rather than considering ways in which the judiciary might be disempowered in protecting individual rights, the IHRAR should focus on developing means by which Parliament can be enabled to fulfil the role envisaged for it in the HRA. It is not necessary to amend the HRA in order to ‘rebalance’ constitutional labour between Parliament, the judiciary, and the Government. Rather, Parliament needs to more fully and consistently engage with rights in its pre- and post-legislative work responding, where appropriate, to identify rights-implications of law and policy. Such engagement would reinforce Parliament’s envisaged role under the HRA, while still respecting the courts’ role in adjudicating individual cases under the Act.

Daniella Lock, Professor Fiona de Londras and Dr Pablo Grez Hidalgo

Daniella Lock is a Research Fellow at the CVRO and doctoral student and Teaching Fellow at University College London.

Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School and PI of the CVRO.

Dr Pablo Grez Hidalgo is Research Fellow at the CVRO and tutor in Public Law at the University of Edinburgh.

This post reflects preliminary findings of the COVID-19 Review Observatory, tracing and enhancing parliamentary engagement with rights in the UK’s response to SARS-CoV-2. The project is funded by the Arts and Humanities Research Council (AHRC) as part of UKRI’s Covid-19 funding.    

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(Suggested citation: D. Lock, F. de Londras, and P. Grez Hidalgo ‘Parliamentary Engagement with Human Rights during COVID-19 and the Independent Human Rights Act Review’, U.K. Const. L. Blog (3rd March 2021) (available at https://ukconstitutionallaw.org/))