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January 18, 2021
The Government says that the 1998 Act has been in force for 20 years and that it is “timely to undertake a review into its operation” to ensure that it “continues to meet the needs of the society it serves”. The Government states that it is “committed to remaining a signatory to the European Convention on Human Rights”.
The Government is establishing an independent review to examine the framework of the 1998 Act, how it is operating in practice and whether any change is required. Specifically, the Review will look at two key themes which are outlined in the Terms of Reference (ToR) as follows:
- the relationship between domestic courts and the European Court of Human Rights (ECtHR); and
- the impact of the 1998 Act on the relationship between the judiciary, the executive and the legislature.
The Review will consider the approach taken by domestic courts to the jurisprudence of the ECtHR, including how the duty to “take into account” jurisprudence has developed. It will consider whether the 1998 Act strikes the correct balance between the roles of the courts, the Government and Parliament. Moreover, it will consider whether the current approach risks domestic courts being unduly drawn into questions of policy. The Review Panel will then consider whether and if so, what reforms might be justified.
As part of its work the Review will also examine the circumstances in which the 1998 Act applies to acts of public authorities taking place outside the territory of the UK, with consideration of the implications of the current position, and whether there is a case for change.
The Review is limited to consideration of the 1998 Act, which is a protected enactment under the devolution settlements. The Review will not consider the scope of the substantive rights scheduled to the 1998 Act.
A public Call for Evidence has also been issued. The Call for Evidence closes on the 3 March 2021.
The Review Panel will examine a range of data and evidence and will report back in Summer 2021, putting forward options for reform, for consideration by the Lord Chancellor and Justice Secretary, Robert Buckland. Their report will be published, as will the Government’s response. To read the Government’s announcement and for links to the ToR and the Call for Evidence, click here.