Why we need to revise the Human Rights Act

Josh McCauley

If you were to ask me what the biggest legal problem is I would state our Human Rights system. Currently, we have the Human Rights Act which was passed by Tony Blair’s government in 1998 with the flagship motto ‘Bringing Rights Home’. Funnily you can see he was trying to emulate the famous ‘Football’s Coming Home’ motto with a human rights spin. It was passed during Euro 98. Unfortunately, that year football did not come home, but nor did human rights. The Human Rights Act 1998 was a supposed solution to making Human Rights more assessable in our legal system. It incorporated the European Convention of Human Rights (ECHR) into our legal system. Yes, instead of creating a bill of rights suited to British society we just pasted the convention into our legal system. This created many flaws. On paper, as a layperson, you would look at the act and think it is a good thing, just based on the title. However, the Human Rights Act presents many flaws. In 2015 when Cameron’s conservative manifesto was released, he pledged to scrap the Human Rights Act. The media as they have done with Covid, and Brexit went into panic mode. Headlines emerged such as ‘Tories scrapping human rights in the UK’. The Human Rights Act is like the legal form of the NHS in a way, any talk of reform and people start to think of extremes. Any talk of its flaws and you are labelled as ‘anti human rights’. The Human Rights Act was passed in 1998 we had rights before it and we will still have rights if it is reformed. This article will outline, the problems of the act with the hope of making a case for reform. This article will not talk about, what the reforms could look like. Instead, a supplementary article will be published to discuss the proposed reforms with the government currently reviewing the Human Rights Act.  

 The main criticisms that I would argue are based on how the act goes against basic principles of constitutional law such as parliamentary sovereignty. My main problem of the act is Section 3, which states, that ‘so far as it is possible domestic courts must interpret primary legislation in line with convention rights’ What does this exactly mean? In plain English terms, it means if an act of parliament goes against convention rights the courts may interpret the language in it to make it compatible with the convention. Firstly, I submit that this is a fundamental breach of parliamentary sovereignty based on how this has been used by our courts. In R v Ghaidan, a homosexual couple were sharing a tenancy protected by the Rent Acts 1977. When the person whose name was on the tenancy died the landlord tried to evict the surviving man. The issue, in this case, was that the Rent Act gave protection to couples by stating that if the couple lived like a husband and wife the title would automatically be passed over to the surviving partner. However, the Rent Act made no provision for homosexual couples. This clearly breached the ECHR there was no dispute on this. The main problem, however, was could the Rent Act 1977 be interrupted in a way that would make it compatible with the ECHR. On a basic explanation of the outcome the then House of Lords Appellate Committee (now Supreme Court), stated that the protection provision of the Rent Acts 1977 could be interpreted to include homosexual couple protection. This is my view was a blatant breach of parliamentary sovereignty here the court changed the meaning of legislation passed by parliament. Although, many would provide the argument that this provided a good outcome as it prevented discrimination on sexuality. I would counter this by saying in legal cases emotion needs to be taken out of the equitation and you need to consider the fundamental principles at stake. In other cases, such as R v A, parliament passed an act that made it harder for defence lawyers to intimate rape victims testifying at a rape trial. Later, an accused rapist stated this was against his convention right to a fair trial. The courts agreed and used section 3 to completely change the meaning of what parliament intended in passing the particular statute. This is an absurdity. The section 3 power which gives the courts the ability to do this, and how the courts have been applying it has diluted the importance of parliamentary sovereignty. This is not how our legal system works. Parliament is the highest form of authority in our country. Our legal system is not based on a codified constitution where judges act as human rights guardians. Judges should not be changing the meaning of legislation that gives a different outcome to what Parliament has intended, even if it produces an unjust result. Currently, the courts are thinking otherwise and are destroying our traditional constitutional framework in the meantime.

 Alternatively, under the Human Rights Act if the courts cannot interpret legislation in line with rights because the statute explicitly rules out a different interpretation, then they may issue a section 4 declaration of incompatibility. The difference with this power is that the courts simply declare to parliament that the law is not compatible with the ECHR and urges them to amend it. On the surface, I can live with this power as it does not breach any fundamental principles of British constitutional law. However, it is a rarely used power because acts of parliament tend to be ambiguous and therefore, it gives the judges the ability to use the section 3 power which as argued is destroying parliamentary sovereignty.

Furthermore, the courts frown upon issuing a declaration of incompatibility as they tend to feel sympathetic towards the person seeking the claim as a declaration of incompatibility changes no law and as such the person claiming would lose. Ultimately, we are stuck under a system where our sovereign parliament is getting set aside whilst the courts are proactive in changing the meaning of legislation in the name of a foreign convention. It is a flaw that is not mentioned by many, but it is a flaw that has a devastating effect.

 Lastly, this leads me on to my final criticism of the Human Rights Act and that is the influence of the Strasbourg Court (European Court of Human Rights. Under Section 2 of the Human Rights Act, it asks our courts to take into consideration judgements made from the Strasbourg court. At a glance that may seem adequate. However, again like many things with this act once you dig deeper you find the problems. The main problem is how submissive our courts have been to the Strasbourg court which is an international court. In our legal system, international law is separate from domestic law however, the Human Rights Act again seeks to break that link. In lay terms, once a case reaches the supreme court the decision becomes binding on all lower courts. Technically, it is a form of case law. The Strasbourg Court as an international court hears cases against signatories to the ECHR (such as the UK). Therefore, if the supreme court rules against a particular human rights claim, the claimant may take his claim to the Strasbourg court against the UK as a state. However, unlike the Supreme Court’s decisions, the Strasbourg courts decision are not binding on our courts or the state. They are just influential. However, for the first time under Section 2 of the Human Rights Act, our courts can now apply the decisions by Strasbourg directly into our legal system. Section 2 only, states that they must only consider doing so however, the court has taken a different stance. Now the court even in disagreement with Strasbourg will apply the Strasbourg decisions. The Strasbourg court is now the de facto highest court in our country for dealing with Human Rights matters. The full details on the relationship between our courts and the Strasbourg court would be too long and detailed for this blog post. However, I will outline two examples of how the Strasbourg court has just too much influence. In R v Ullah, Lord Bingham stated that even though the wording of the act states, they must only consider judgments from Strasbourg they would without good reason apply Strasbourg decisions. The aftermath of this resulted in cases where our judges disagreed with the decisions made in Strasbourg yet felt compelled to apply them. Hence, why I argue that Strasbourg is now the de facto highest court for Human Rights claims. Again, I would argue, why should a foreign court bind our courts? This to me is one of the biggest flaws of the Human Rights Act, our courts should act independent on Human Rights issues, they should not bow down like they are masters to Strasbourg. We are a sovereign state. In many areas, our judges will agree with the judgments made in Strasbourg however, in the case that they don’t they still follow the Strasbourg court, such as Lord Sumption in R v Chester. Lord Sumption completely disagreed with the Strasbourg’s court’s judgement on prisoner voting yet due to the Human Rights Act and the precedent set in its approach he felt compelled to follow it. I would argue, therefore, that this flaw not only goes against another legal principle such as binding precedent but sends a message to society that we as a country are not the ultimate deciders on human rights.

 I stated at the start of this article that the motto of the Human Rights Act was to ‘bring rights home’. However, does it really bring Rights Home, or does it simply, just submit us to a foreign convention just like how we submitted ourselves to the European Union. The evidence presented suggests the latter. Ultimately, it is a flawed act that is a product of Blair’s Labour, and it needs to be reformed.

Photo by Christian Lue on Unsplash.