The Human Rights Act (HRA), which is twenty-five years old today, has always been controversial. It unsettles the balance of the constitution, enabling judges, and lawyers, to attack policy and legislation in a way that is anathema to our constitutional tradition.
Introduced under Tony Blair in 1998, the HRA was intended to help guarantee basic human rights. This was a noble objective, but it does not follow that the Act was a good idea. While securing the rights of others is a fundamental object of government, the act’s main problem is that it disables parliamentarians, and the public, from responsible action, putting parliamentary democracy and the rule of law in doubt.
The HRA’s tension with fundamental constitutional principle is easy to see. Consider section 3, which provides that legislation is to be read compatibly with Convention rights whenever possible. This provision has not simply been read as a presumption about Parliament’s intentions, but as a judicial power to rewrite legislation. This turns ordinary legal technique on its head, undermining Parliament’s authority and introducing uncertainty into legal reasoning and practice.
Before 1998, the British constitution made provision for controversies about rights to be settled primarily by legislation not litigation. For the lawyers who drafted the HRA, this was reckless in the extreme, with our constitution failing to measure up to the example set by North America and continental Europe. But the case for the old constitution remains strong. Questions about how human rights should inform lawmaking are political questions in relation to which judges and lawyers have no special competence and which cannot reasonably be outsourced to them.
In the quarter century since its enactment, the HRA has not stood still. Consider its scope. Parliament intended the HRA to apply only to events taking place after 2 October 2000, when the main provisions of the Act came into force, subject to some limited, clearly set out exceptions, and to apply only within the territory of the UK, or at best to have only very limited extraterritorial effect. While domestic courts for a time affirmed both propositions, both have since been abandoned, with courts wrongly relying upon Strasbourg case law to transform the scope of the Act, giving it extra-territorial and retrospective effect.
True, under Lord Reed’s leadership, the Supreme Court has, since December 2021, begun to limit the Act’s retrospective effect (a welcome change for which Policy Exchange long argued). But the HRA’s shifting scope over time confirms that it is scarcely set in stone.
The same trouble applies to the meaning of Convention rights. For a time, our courts took for granted that they should track (mirror) the Strasbourg Court’s case law, at least when it was clear and settled. This meant that British judges should not interpret Convention rights to impose additional limits on public bodies. But between 2008 and 2021, our courts held open the option of going beyond Strasbourg, using the HRA to attack legislation and policy even when the Strasbourg Court would conclude that it complies with the European Convention on Human Rights.
This line of case law was a mistake and it was good that the Supreme Court recognised, almost two years ago, that it was not its place to invent new rights or extend old rights in this way. But this is in a sense only the latest in a series of destabilising twists and turns in how our courts have understood their relationship with Strasbourg. Without amending the HRA to put this point to rest, a future Supreme Court could, yet again, change how the Act is understood.
On the 25th anniversary of the HRA, the constitutional case against it remains strong. It is unfortunate that so much political energy has been wasted on proposals to replace it with a so-called British Bill of Rights. These plans would have domesticated the Convention and risked giving domestic judges more discretion to interpret Convention rights in ways that go beyond Strasbourg. A British Bill of Rights might well have compounded the HRA’s shortcomings.
Thankfully, the Government saw sense and withdrew the recent Bill of Rights Bill. But the constitutional problem remains. The best and simplest option would be simply to repeal the HRA, with consequent amendment to the operation of the Northern Ireland Act 1998 to maintain the limits on Northern Irish institutions. This would help restore the traditional British model of rights protection, in which Parliament is central to rights protection, with courts playing an indispensable but ancillary role.
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