The Independent Human Rights Act Review
The Independent Human Rights Act Review was announced in December 2020. It was set up by the UK Ministry of Justice as an independent panel looking at the relationship between domestic courts here in the UK and the European Court of Human Rights and the impact the Human Rights Act has had on the relationships between the Judiciary, the Government, and Parliament. We worked with over 400 people in our submission to the IHRAR. We also worked to make sure the panel heard directly from people who have relied on the Human Rights Act to help them challenge poor practices without going to court, alongside people who have used the Act in court cases on everyday issues.
Then-head of Ministry of Justice, Robert Buckland, said the IHRAR panel would look at how the Human Rights Act was working over 20 years after it was created.
The panel put out a call for evidence based on the terms of reference (its scope) as set by the Ministry of Justice. However, it ended up asking narrow legal questions about the Human Rights Act in the courtrooms and the relationship with Parliament. At BIHR, lots of people contacted us because they wanted to share evidence about 20 years of the Human Rights Act working, but this did not seem to fit with the narrow questions. We wanted to make sure that people, organisations and frontline staff in public services could share their evidence with the panel.
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we held five research and upskilling workshops to gather the views of people across the UK
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through our workshops and Easy Read survey, we reached over 400 people
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we supported 10 people with lived experience to share their experiences directly with IHRAR panel members
Working with a partners in the voluntary sector and frontline staff bodies across the four nations of the UK, we held five research and upskilling workshops and shared an Easy Read survey, reaching over 400 people. This provided us with extensive experience-led research to submit a comprehensive response to the call for evidence which answered the legal questions posed but, crucially, also shared the views of over 300 people across the UK of using the Human Rights Act in their lives. The evidence we gathered was consistent across the UK and our submission amplified those voices. It was clear that the route to making human rights real for everyone is not through more legislative reviews of our Human Rights Act but through human rights leadership, at all levels, ensuring that the Human Rights Act is understood and implemented every day, in every interaction a person has with public services. We also put together guides, top tips and a question-and-answer platform to support people to engage with the consultation process directly.
Lived Experience Roundtable
The IHRAR panel ran a number of meetings with specific groups and public roadshows, hosted by law schools of universities across the UK. We wanted the panel to hold an event which was accessible to people who have experience using the Human Rights Act but who were not academics or lawyers. Importantly, we wanted to make sure that the panel heard examples of the Section 6 duty in the Human Rights Act. This duty means that public authorities (such as the NHS, police and social services) must act in a way that is compatible with human rights. We also wanted the panel to hear about why the Section 3 duty, the duty to apply other laws in a way that is compatible with human rights, as far as possible, is important, not just in court rooms but in everyday life. We were concerned that if this did not happen, wider everyday experience about a vital law would be missed.
We partnered with our colleagues at Liberty to set up an online “lived experience roundtable” for panel members to attend. This gave the Panel an opportunity to hear the stories of people who have used the Human Rights Act to create change in their lives. This included people who have had to use the Act to stop arbitrary decisions or policies being applied to them in a way that breached their rights, and staff who work in public services who have legal duties to uphold rights under the Act.
Here's what roundtable participants said...
Ian is a carer for his wife and son, who have a range of health and medical needs, including learning disabilities, dementia and autism. He also works with NHS England’s Care, Education and Treatment programme as an expert by experience, is a local champion for the Challenging Behaviour Foundation and a volunteer for a number of charities and groups. Ian said:
“Human rights are so important to help us ensure that public services do the right thing. My most important plea to the panel is that the review in no way reduces people’s human rights under the Human Rights Act. If anything, we should end up with something which is more robust and inclusive.”
Sarah is the Equality, Diversity and Human Rights lead for Tees, Esk and Wear Valleys NHS Foundation Trust a large mental health and learning disabilities trust. She has been involved in Human Rights Act work since 2014 when the Trust took part in the Connecting Human Rights to the Frontline project with BIHR and has developed this work into a range of areas. Sarah said:
"I work in a large mental health and learning disability trust and we provide care for people with learning disabilities and severe and enduring mental health issues many of whom have experienced trauma and abuse. As you can imagine many people are have times when they are extremely distressed and may want to take their own lives and we are very aware of the need to ensure that the interventions we use do not retraumatise them. The duty to protect the right to life means that sometimes we will use restrictive practices to keep the person safe and alive so we will use interventions such as restraint and seclusion.
The Human Rights Act provides us with an objective legal framework for examining those decisions and ensuring that what we are doing and how we are doing it is a lawful, legitimate and proportionate restriction of Articles 8 (psychological and physical integrity) and 5 (liberty) and that we don’t risk breaching people’s Article 3 rights to freedom from inhuman and degrading treatment. I think consideration of the proportionality of the intervention is particularly important as it encourages us to explore other less restrictive interventions. For example, we can restrain someone in a compassionate, caring way by talking to them when they are well about how to do it, talking to them all the way through the restraint, and debriefing them afterwards.
In short, the Human Rights Act has given us a legal, objective, decision-making framework, provided by no other law or policy, to ensure rights are protected and people and staff are safe. We’ve made human rights part of the Trust’s strategic aims. In its current form, the law is powerful and a framework for positive change for people and families accessing Trust services.”
Kirsten is a single parent of an autistic son who has been held in mental health hospitals and subjected to restrictive practices, including mechanical restraint and long periods in seclusion. Kirsten said:
“Without the Human Rights Act, the Mental Health Act could trump people’s rights. The Human Rights Act means that Mental Health Act decisions can be challenged where not right-respecting.
As a parent, the Human Rights Act gives you the legal framework to challenge decisions around where someone is housed, contact with family, being turned away from services leaving a person at risk of harm. The JCHR recently referred to families as “human rights defenders”. If you take away or dilute the Human Rights Act, you take away the tool to challenge for people and their families/loved ones.”
Fazeela Hafejee has over 20 years’ senior strategic leadership experience in the Health and Social Care field as a Social Worker. Fazeela said:
“Social workers are working within the Human Rights Act every day, every decision. My team and I use the HRA as a legal framework for making rights-respecting decisions. There is a specific focus on the rights to life, liberty and private and family life within social work practice. My fear is that changing the Human Rights Act could water down protections that social workers use every day to uphold rights in practice.”
Joe is the Chief Executive of All Wales People First, the united voice of self-advocacy groups and people with learning disabilities in Wales. Since this work, Joe has become a trustee of BIHR. Joe said:
“After attending a BIHR training session, myself and a member of All Wales People First used the Human Rights Act to challenge a Local Authority. The member was living in supported living run by the Local Authority. Any time they left the supporting living unit, staff told them they would have to isolate in their room.
BIHR supported us to challenge this by raising that this was a restriction of the right to liberty (Article 5) and the right to private life (Article 8). We raised that this was not a lawful, legitimate or proportionate restriction of this right. Although this issue had been going on for a while, it was resolved the day after raising the legal duty under the Human Rights Act.
I want to be clear that the barriers faced by people with learning disabilities have always been there, this stuff isn’t new, but the Human Rights Act is a positive framework to challenge some of these barriers.”
Angela is Adrian Jennings’ mother. Adrian was pronounced dead on arrival at hospital at the age of 32, two weeks after his discharge from an inpatient mental health unit. Angela had to rely on Article 2 of the Human Rights Act to secure an inquest that would investigate what happened, and hold the NHS Trust, the Commissioning Group and the Police to account for their failures to protect Adrian’s life. Angela said:
“We’re now helping lots of people and preventing unnecessary deaths, and thankfully, we were able to do that because of applying Article 2 (the right to life)."
Craig is the father of Cameron Mathieson, a child with severe disabilities. Cameron’s family were denied a disability benefit after Cameron had been in hospital for 84 days. They used the Article 14 right to be free from discrimination to successfully challenge this withdrawal of benefits in the Supreme Court. Craig said:
“What I would ask you to recommend from the bottom of my heart is that the Human Rights Act and access to justice for all should be strengthened, not hollowed out even further. Because in a free and democratic society, what possible reason could those elected to serve us have to fear having to be fair and honest in their dealings with us?”
M acted as a litigation friend to her disabled daughter in an HRA challenge relating to charging for council-provided care. Her daughter was charged at such a high rate that it was having a detrimental effect on her quality of life. M said:
“I can confidently declare that had we not been able to use the Human Rights Act, then severely disabled people would still be in this dire state. The issue I see is that this should be made more accessible, not less.”
Diane is a widow who was not allowed to record her deceased husband as the father of their two children on their birth certificates. She used Articles 8 and 14 to challenge this rule. Liam is Diane’s son, who won the right to have his father listed on his birth certificate. Diane said:
“We are all human. Human rights law is the thread running through my life. It unites – or should unite – us all. You never know when you’re going to come to have to rely on it.”
Liam said:
“For quite a lot of people, where the Human Rights Act comes into play isn’t necessarily something that they decide upon, it’s something that’s invoked by their circumstances or disability or ethnic group."
Evidence to the Joint Committee on Human Rights
In response to the Review, the Joint Committee on Human Rights (JCHR) also opened a Call for Evidence. We submitted a short response outlining some of our key concerns on 19 February 2021 followed by a full response on 22 March 2021.
Our summary
Read our short recap of some of the central issues raised in our full submission to the JCHR.
Our full response
Read our main submission to the JCHR amplifying the voices of people with experience using the Human Rights Act.
Our short response
Read our initial short response to the JCHR's call for evidence raising some key concerns with IHRAR.
The IHRAR received over 150 responses alongside its roundtable meetings. The Its final report is 580 pages and highlights that the effectiveness of the Human Rights Act cannot just be measured in the courtroom. The panel found that there needs to be more education on the Human Rights Act to increase public ownership of the Act and its concepts. This would help to create a culture of human rights, one of the main aims of the Human Rights Act. The report also recommended an increase in transparency in how the Human Rights Act works.
The report says “the vast majority of submissions received by IHRAR spoke strongly in support of the HRA. They pointed to its impact in improving public administration for individuals, through developing a human rights culture. Thus, the HRA was not, or not just, to be viewed through the prism of a few high-profile cases or indeed with a focus on litigation at all." (Page 16, para 46).
However, on the same day the UK Government published this report, it also published its consultation on Human Rights Act Reform which contradicts the findings of the panel entirely. The consultation was swiftly followed by the Government's Rights Removal Bill, which was ultimately abandoned in June 2023.
Sanchita Hosali, CEO
“After months of sitting on the findings of Independent Human Rights Act Review, the UK Government finally release the report the same day as issuing yet more questions aimed at fulfilling the agenda to “overhaul” our law. At BIHR, we worked with 400 people in our own submission to IHRAR and, alongside so many others, sent a strong, clear message that our Human Rights Act is working well to safeguard everyone’s rights and help people hold officials to account. Like parliamentarians at the Joint Committee on Human Rights, we remain unconvinced that there is any case for change."