Opinion: Adam Tomkins

The Human Rights Act 1998 (“HRA”) may be fundamental but, like any other aspect of constitutional reform, it is work in progress, not the last word. Our devolution “settlement” is not settled, but fluid: the Scotland Act 1998 has been amended on multiple occasions. Likewise, the relationship between the courts and parliamentary government, of which the HRA is a key part, is dynamic, not static.

The UK Government’s proposals to revise and update Britain’s human rights laws, published by the Ministry of Justice last month, seek to build on, not to bury, the foundations laid by the HRA. Under the Government’s plans, now out for public consultation, there will be no move to withdraw the UK from the European Convention on Human Rights. Convention rights will continue to form the bedrock of the UK’s new Bill of Rights. As the consultation paper makes clear, the HRA was “a well-intentioned attempt to enhance rights protections in the UK”. The Government will “leave in place those aspects of the Human Rights Act that have not proved problematic in practice”. This is all to be welcomed.

By and large, the HRA has indeed worked well in practice. But, as with any general rule, there are exceptions – and it is on these that the core of the Government’s proposals are focused. They concern the relationship of domestic precedent to decisions of the Strasbourg court; the extent to which domestic courts may effectively rewrite legislation; and the strength of the protection our law affords to freedom of speech. Let us consider each in turn.

The first is governed by s 2 of the HRA, which requires that in appropriate cases relevant Strasbourg authority “must” be taken into account. Our courts have tended not merely to take into account decisions of the European Court of Human Rights, but to follow and apply them. This is not a uniform practice – there are well-known exceptions – but it has become the general pattern. This is not what was intended when the HRA was written. The independent review of the HRA (whose report was published alongside the Government’s proposals) was of the view that s 2 required amendment, and the Government is wise, in my view, to put a number of options as to how this may be achieved to public consultation.

However it is done, the result will in the end be the same: namely, to empower our own courts to interpret and apply human rights law as best befits the interests and circumstances of the United Kingdom. This is an important aspect of what Jack Straw and Lord Irvine of Lairg 20 years ago called “bringing rights home” – although it is noticeable that that kind of jingoism does not feature in the current Government’s consultation.

The relationship between legislation and rights is governed by ss 3 and 4 of the HRA. Section 3 provides that, where possible, legislation is to be interpreted compatibly with Convention rights; s 4 that, where this is impossible, a declaration of incompatibility may be granted. In practice, few such declarations have been issued. One of the reasons for this is that s 3 has been widely used to interpret – or, sometimes, straightforwardly to rewrite – legislation to render it rights compliant. Again, this is not what was intended by those who wrote the HRA and it needs to be corrected. The courts should not be in the business of disregarding what legislation says in order to ascribe to it a meaning at odds with what Parliament intended.

Let us grant that, at present, the courts do this not of their own free will but because they consider that Parliament mandated it in s 3. It follows that s 3 needs to be recrafted in order to make it clear that this is not what Parliament wants. If Parliament enacts legislation incompatible with Convention rights, the remedy lies in s 4 and not in s 3.

Finally, on free speech, you would have to have been living in a bunker not to appreciate that free speech is increasingly fragile in modern Britain. Hate crime legislation and the popular desire to ban all speech deemed offensive are but two instances of this. Our human rights law does need to offer greater protections for free speech, and not only when speech clashes with the right to privacy. The Government is right to take this opportunity to consult on how best this may be achieved.

If enacted, the Government’s proposals will sharpen and improve our human rights laws, offering increased protection while at the same time clarifying that all-important balance between the power of the courts and the authority of parliamentary Government to set public policy.

The consultation is at justice.gov.uk and runs until 8 March 2022.

A response to this article is planned for February