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IHRAR’s Call for Evidence: Mishcon de Reya response

Posted on 2 March 2021

Mishcon de Reya has a long history of engagement with public causes and human rights issues. The Firm regularly acts for individuals and groups who assert that their human rights have been breached and has challenged the Government in cases where it has been alleged that executive action has been used to curtail people’s rights. Based on its experience of cases involving the application of the Human Rights Act 1998 (the “HRA”/ the “Act”) the Firm believes that the HRA is materially fit for purpose.

The Firm’s Data Science team has analysed data from the vLex Justis database of judgments, along with other data sources; its analysis has been used in support of this submission. The methodology applied is described in the Appendix to this submission.

The Independent Human Rights Act Review (“IHRAR”)” Terms of Reference suggest that, “under the HRA, courts have increasingly been presented with questions of “policy” as well as law.” It is undoubtedly true that there are occasions when the courts have been confronted with questions of policy, however, an analysis of the case reports demonstrates that the judiciary is acutely aware of the importance not to stray into areas of policy that are, rightly, the exclusive domain of Parliament. Such areas of policy include issues of national security and fiscal policy as evidenced by the cases of Bellmarsh and Carlile in which the courts were notably reluctant to interfere with the policy decisions in dispute. The HRA was carefully drafted so as to enshrine and protect the balance and separation of power between Government, the legislature and the judiciary. Rightly, in any given situation, power rests with Parliament to amend legislation and with Government to secure it a place on the Parliamentary agenda.

Read the full response here.

Read the methodology here.

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