United Kingdom: Human Rights Act Review: Signalling a rollback of regulation and judicial oversight post Brexit? – GlobalComplianceNews

The Independent Human Rights Act Review (IHRAR) panel (Review) is led by Sir Peter Gross. Its establishment follows the2019 Conservative Party manifestocommitment that:

We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.

The Review seeks to examine whether the HRA is working in practice and continues to meet the needs of the society it serves, looking specifically at two key themes:

Baker McKenzie participated in the recent call for evidence by the Review, collaborating with the Law Society and, separately, several industry representative bodies on responses as well as issuing our own, which is availablehere.

The IHRAR is expected to report in Summer 2021 with options for reform that could have significant implications for the rights and standards to be observed in the UK, the ability of individuals to enforce their rights directly before domestic courts and the scrutiny of the exercise of executive power. Its work should be read together with the work of the Independent Review of Administrative Law panel (IRAL), which is considering options for the reform to the judicial review process (Baker McKenzies submission to the IRAL can be foundhere), and which is expected to publish its conclusions this week.

The recommendations made by the IHRAR and IRAL may reshape existing constitutional norms and protections opening a path to the light-touch regulatory economy reportedly envisaged as part of the UKs post-Brexit future. Setting aside the question of how this might be pursued within the constraints of level playing field commitments made to the EU, as a practical matter, corporates operating across jurisdictions will remain tasked with meeting regulatory burdens across borders and the potential challenges in a divergence of approach in the UKs domestic application of international rights obligations, as well as the decisions of public authorities more broadly.

The framing of the Review

The HRA came into force in 2000 and has operated as a significant buttress to the respect and enforcement of individual human rights in the UK in three key ways:

Parliament will work to make sure that new legislation is compatible with the ECHR, while retaining its sovereignty and power to pass incompatible laws. The courts will also interpret laws in a way that is compatible with the ECHR where that is possible.

All public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and anybody performing a public function must act with respect to, and to protect, individual human rights.

The HRA incorporates the rights set out in the ECHR into domestic British law. This allows individuals to enforce those rights before a British court, rather than having to go to the ECtHR in Strasbourg.

The IHRAR will look at the operation of the HRA in two broad ways:

The IHRAR is not considering a potential departure from the ECHR, a binding international treaty, or derogation from the ECtHR.

Baker McKenzies response to the Review

Baker McKenzie made the following points in response to the Review:

What does this Review mean for industry?

The HRA ensures consistency across the many thousands of acts or decisions of public authorities that are made each year by ensuring that they are compliant with the ECHR. Securing a level playing field in this regard between jurisdictions is a key concern for many international corporate clients who are affected by the decisions of public authorities across multiple European jurisdictions, as well as European domestic legislatures. If, following receipt of the IHRAR and the IRALs recommendations, Parliament decides to take action that might render rights protections vulnerable to executive overstep and/or remove a crucial mechanism by which the executive might be held to account for any abuse of power, this could affect the UKs ability to offer this certainty as to the rights and standards to be observed in the UK.

It is also widely recognised that the legal landscape is changing across the EEA, with ESG and human rights diligence at the forefront of many companies agendas. The trend to mandatory legislation in this space, including environmental and human rights due diligence and the prevention of modern slavery in supply chains, means that businesses are increasingly aware of the part they play in securing and protecting fundamental human rights.

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United Kingdom: Human Rights Act Review: Signalling a rollback of regulation and judicial oversight post Brexit? - GlobalComplianceNews