Should we replace the human rights act?
Weighing up the arguments on the Human Rights Act
At the Conservative Party Conference in October 2021, Dominic Raab vowed to “overhaul” the HRA 1998 ending the nonsense of the act.
The HRA 1998 came into force on 2 October 2000. Its principal aim was to “bring rights home”, by incorporating 16 of the fundamental human rights in the European Convention into UK law. The HRA is in effect a bill of rights, albeit rights applying to all of Europe rather than specifically British.
In 2020, the then Lord Chancellor, Rt Hon Robert Buckland QC MP, commissioned an independent Panel to conduct the Independent HRA Review (IHRAR). The Review’s Terms of Reference required the Panel ‘to examine the framework of the HRA, how it is operating in practice and whether any change is required’, focusing on two key themes: the relationship between domestic courts and the Strasbourg Court, and the impact of the HRA on the relationship between the judiciary, the executive and the legislature”.
In a literal sense, a Bill of Rights is simply a parliamentary bill, which gives statutory authority to the rights included, conferring them on citizens and giving redress under the law for any infringement of those rights.
The development in English law of statutory rights traces back to Magna Carta 1215, which established the supremacy of the rule of law over the king himself. In the 900 years since, the 1628 petition of right and 1689 Bill of Rights, limited royal prerogative and then established parliamentary supremacy over the monarch. Reform Acts of 1832, 1867 and 1884 and the representation of the people act 1918, broadened the democratic reach of parliament.
More recently, the race relations act 1965, Sex Discrimination Act 1975 and Disability Discrimination Act 1995, all address society’s failure to recognise the rights of some sections of the population. The HRA of 1998, in using as its template the rights contained in the ECHR on human rights, for the first time codified and gave statutory authority to those rights.
The ECHR on Human Rights has come to be seen as a definitive statement of unassailable rights which now sit at the heart of the HRA 1998. However, it must be recognised that almost all of the rights described in the convention are qualified, for example The Article 5 Right to liberty does not prevent in-car-ceration of criminals; the Article 10 right to freedom of expression does not extend to hate speech.
In drafting the HRA, the requirement for interpretation exercised the minds of its creators, just as it had those who drafted the ECHR on human rights. A significant problem being the existence of many earlier statutes whose wording, if applied literally, would produce a result in conflict with the rights now protected. A good example of this dilemma is the case of Gaidan V Godin Mendoza, where the surviving partner in a same sex relationship claimed entitlement to inherit the statutory tenancy held by his deceased partner. The rent act 1977 did not include same sex relationships within its definition of spouse. However, since the rent act did not expressly exclude same sex relationships, the opportunity was available for the court to interpret the existing law in a way which allowed a judgement compliant with articles 8 and 14 of the ECHR on human rights.
Interpretation of pre existing laws in a way which renders them compliant with the convention Rights is a requirement of the act expressed in section 3 (1), which states “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights”. The instruction given by Section 3(1) of the act, has obliged courts to reinterpret laws and insert or alter wording to a degree which impacts the separation of powers between parliament and the judiciary.
Whilst the broadening of statutory interpretive rules has relieved parliament of the duty to inspect and amend, possibly many thousands of clauses in existing statutes, which could lead to decisions in conflict with convention rights, the fundamental concern remains – who creates the law, parliament or the courts? When a House of Lords interpretation altered the balance set in section 41 of the youth justice and criminal Evidence Act 1999, allowing further intrusions into a complainant’s sexual history, in rape cases, perliamentary concerns were raised.
Concerns also surround Section 2, which requires courts dealing in connection with a convention right, to “take into account” any “judgement, decision, declaration or advisory opinion” of the European Court of human rights.
This requirement initially led courts to over-rely on strasbourg case law. In viewing Strasbourg decisions as precedents requiring UK courts to align their own findings, the UK courts effectively ceded legal supremacy to Strasburg. Lord Judge himself suggested an amendment to Section 2 clarifying the UK Supreme Court status as at the very least of equal standing with the Strasbourg court.
When it is also considered that the Strassburg court itself, is not bound to follow its own precedent, unlike in English common law, the logic is further undermined.
Vexatious misuse of the HRA provides further ammunition for critics, and the damage done to the reputation of the act by some of the more sensational cases publicised in the media, has to be treated seriously. For example, Whilst Theresa May’s spurious claim that a man’s deportation was prevented under Article 8, because he had a pet cat was, If perhaps not willfully inaccurate, at least a piece of opportunist politicking. The target of Mrs May’s attack was not the man, or his cat, but the HRA itself, and although the claim was soon debunked the damage to the HRA was not so easy to repair. Dominic Raab himself when announcing the review of the act, quoted the case of a drug dealer and wife abuser, who successfully claimed article 8 protection against deportation. Having claimed the sensational headline, Raab recognised that this loophole had already been closed by subsequent legislation (the immigration act 2016). Much as these examples are more characterised by mischievous politics than by their indication of a real need to reform or repeal the HRA, there are certainly abuses. Examples of prisoners challenging exclusion from communal worship following violent behaviour, or even not being given the preferred choice of meal, tarnish the principle of human rights and burden government and courts with the costly obligations to fund cases.
The HRA however has significant positive qualities. Whilst Section 3 is criticised for the licence given to courts for “judicial creativity” the benefit of allowing courts to interpret existing laws “so far as it is possible to do so,” in order that they be convention compliant, has relieved parliament of the onerous burden of systematically amending every questionable clause in every questionable statute. The first advantage to the method set in Section 3 is that adjustment of non compliant wording can take place in an ad hoc way, rendering existing law compliant as it is necessary to do so, to deal with specific cases as they pass through the courts, rather than expecting parliament to proactively amend as required, and dedicate the necessary time to each amendment.
A second advantage to Section 3, is that the judiciary are the best qualified experts to identify the most just solution to an apparently non compliant wording, while a backstop to the process exists allowing referral back to parliament under Section 4, by a “declaration of incompatibility”. Parliament’s unease at judicial interpretive licence is tempered by the qualification “as far as it is possible to do so” written into Section 3, and the stated recognition by the judiciary that their role under Section 3 is confined to interpretation not legislation. This was clarified by Lord justice Simon Brown in International transport Roth v Secretary of State for Home Department 2002 and Lord hope in R v A (2002).
Section 2 of the act has significant merit. It requires courts only “to take into account” judgments etc of the Strasbourg court. Failure to do so would have the likely consequence of the case’s referral to Strasburg anyway with the risk of an adverse outcome. If UK courts can demonstrate that a decision has been mindful of earlier proceedings in the Strasbourg court the final judgement is more likely to be contained within UK jurisprudence. Indeed, Kenneth Clarke, then justice secretary, in response to Mrs May’s “pet cat” attack on the HRA, pointed out that without the act “all human rights cases reverte to Strasburg”.
The wording of Section 2, specifically use of the phrase “take into account”, as distinct from “follow”, has in reality, allowed UK courts to interpret convention rights in a UK context, and rendered domestic outcomes more resilient to appeal in Strasburg.
Furthermore, the HRA enhances the standing of the UK internationally. Having recently left the EU, The UK is in the early stages of establishing its separate identity on the world stage. Just as the use of “soft power” enhances the a nation’s prestige worldwide, so any perceived departure from upholding the highest standards of human rights, will have a negative effect.
The current disputes between the UK and France for instance over the management of refugees attempting to cross the channel and enter the UK, and disputes over fishing rights, both threaten relations between the countries. Mutual respect for the convention rights upheld in the UK by the HRA could ease the resolution of such vexed disputes, just as the distancing, however subtle, of the UK from the upholding of those rights will cause concern in Europe, and other parts of the world which look to this country for its example. The Strasbourg court itself presently has a high regard for decisions made by UK courts. Indeed a former president of the European Court of human rights, Sir Nicholas Bratza, said the court was “particularly respectful” of UK decisions, and that analyses by UK courts had in many cases “formed the basis of the Strasburg judgement”.
In drafting the HRA parliament was acutely aware of the need on one hand to give statutory weight to convention rights, thus bringing their enforcement into the sphere of UK courts. In this, the exercise has been successful. UK courts now decide cases involving convention rights and relatively few progress on appeal to Strasburg, fewer still successfully. In engaging convention rights within UK statute the UK has retained the position within Europe it has held, regarding rights and justice, since its formative role in the creation of the convention rights themselves.
Parliament’s concern not to alter the separation of powers between executive, legislature and judiciary was carefully reflected by the wording of both sections 2 and 3. The words of section 2 are “take into account”. These words are not more or less than is appropriate. There is no obligation other than to pay due diligence to the expertise of others, examining similar cases elsewhere, under the same principles. The construction likewise, of Section 3 allows statutory interpretation to bring a convention compliant outcome “so far as it is possible to do so”. Here again, the obligation is to interpret without crossing the line into the creation of legislation that path is set out by recourse to the Section 4 “declaration of non compliance”.
Any reform of the HRA or its replacement with a codified Bill of Rights will inevitably focus on the mechanisms currently addressed by sections 2 and 3. Removal of Section 2 would severely damage our relationship with the Council of Europe and raise questions over our continued commitment to convention rights themselves.
Removal of Section 3 would lead to courts being unable to decide some cases in a compliant way obliging parliament to amend legislation, or defy strassburg by retaining non compliant law, leading to many more referrals to Strasburg.
In conclusion, The HRA is probably not the last word in the development of legal protection for the rights of UK citizens. It is however the most effective way to address the upholding of convention rights, and whilst in the early stages of its implementation, uncertainties existed, the implementation of the act has become more sure-footed. As with all statutory law, case law has followed, providing the judiciary with the experience to manage cases more effectively, and the population of the country with security in the knowledge that their rights are protected. Any assault on the HRA however subtle will be an assault on the rights themselves and a reversal in the development of rights first expressed in Magna Carta.
- Magna Carta 1215
- Bring Rights Home, Rights Brought Home (The Human Rights Bill 1997 p.2.7)
- 16 Articles of the ECHR, Human Rights Act 1998, Sch. 1
- ECHR recognised by all Council of Europe members- Belarus/Kazakhstan are not members
- ECtHR established 1959 to uphold compliance with ECHR
- House of Commons ‘IHRAR 2020 Terms of Reference’ (7th December, 2020) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/953347/human-rights-review-tor.pdf (accessed 15 December 2021)
- s.3 ‘judicial creativity’-
Dominic Raab evidence House of Commons ‘Human Rights Select Committee’ (8th December,2021)
https://parliamentlive.tv/Event/Index/54e1fe5a-9def-4b47-8546-34bf2424f277 (accessed 2 January, 2022)
- Ghaidan v Godin-Mendoza  3 WLR 113
Rent Act 1977, Sch.1 p.2
ECHR Articles 8/14
- Youth Justice and Criminal Evidence Act 1999, s.41
- R v A (No.2) 
- s.2 Over-reliance on Strasbourg-
Lord Judge – call for amendment to s.2 recognising equal status of UK Supreme Court and ECtHR. Lord Judge, ‘Constitutional Change: Unfinished Business’, (lecture at University College London (4 December,2013))”https://www.nottingham.ac.uk/hrlc/documents/specialevents/lordjudgelecture041213.pdf (accessed 14 January, 2022)
3.Media hostility/ vexatious cases-
- a) Theresa May ‘Pet Cat’ , CAT 1A/14578/2008 Senior Immigration Judge Gleeson
- b) Dominic Raab “Drug dealer- evidence to Commons Justice
Immigration Act 2016
- c) Prisoners’ HRA Cases, MOJ HRA Reform (A Modern Bill of Rights Consultation Document pp.127-9)
- s.3 court’s role is to interpret not legislate:
Simon Brown and Lord Hope 2002 Judgements as quoted in Aileen Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998’ published in ‘Oxford Journal of Legal Studies’ (2004) vol 24, No. 2, 259,260.
- s.2 findings more resilient viz: R (on appl. of Hicks) v Commissioner of Police of the Metropolis  in relation to: Ostendorf v Germany  followed by: S, V & A v Denmark 
- International prestige–
- disputes with France (fishing/refugees)
- Sir Nicholas Bratza ‘IHRAR Call for evidence’ (PALG submission p.17
Conclusion: Magna Carta 1215
Originally published here: https://abirking.com/a-critical-evaluation-the-case-for-and-against-replacing-the-human-rights-act-1998-with-a-codified-british-bill-of-rights-mds-law-opinion-blog%EF%BF%BC/?fbclid=IwAR1FwdYXCuTI8JYlgg_HnHmKgUtM6O_at_QxC0zCD_Yg9MpLE_zGCk0rqqE with the title: A CRITICAL EVALUATION- THE CASE FOR AND AGAINST REPLACING THE HUMAN RIGHTS ACT 1998 WITH A CODIFIED BRITISH BILL OF RIGHTS- “Mds Law Opinion”
About the author
Md M Hamid
North East Chair
Md studies law through the Sanctuary Scholarship at Northumbria University and is an asylum seeker. He has been nominated for an Amnesty International award, volunteered for 5 organisations despite not being allowed to work and started his own food bank in Newcastle. He is also a campaigner on the rights of asylum seekers and his judicial review against the Home Office changed the rules on asylum seekers right to study in the UK.