WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
March 30 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Human Rights Act review: incompatibility and political expediency

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Human Rights Act review: incompatibility and political expediency

Union Jack. Pic by Dave King (Flickr, creative comms)

Last week, the window closed for submissions to the Independent Human Rights Act Review (IHRAR). For anyone in the government hoping that these submissions would pave the way for the review to recommend wholesale reform of the Human Rights Act (HRA), their hopes will have been dashed. The submissions are harmonious in their rejection of the need for any reform, praising the HRA for ‘bringing rights home’ and for sparking a dialogue between the courts, the government and Parliament on what rights mean.

Given that the government set up this review in the hope of curtailing, not buttressing, the judicial protection of rights, this hardly comes as a surprise. Trusting Boris Johnson’s government to meaningfully reform the protection of human rights in the UK would be like inviting a fox into a chicken coop, locking it inside, and then wondering why the regular supply of eggs had dried up.

But while these institutions, ranging from campaigning organisations like Amnesty to legal thinktanks like the Oxford Human Rights Hub, are right to reject the notion of a government with the populist instincts of Johnson’s reforming the HRA, they err in concluding that the HRA adequately protects human rights. While recognising that rights are fundamental to any liberal democracy, they fail to emphasise that as part of this, there must be meaningful remedies for their violation which the HRA fails to provide, preferring to prioritise the supremacy of Parliament instead.

This reflects the concern of the Blair government to enhance the protection of rights in the UK but with outrage upsetting the UK’s constitutional structure, which has Parliament, not the courts and not human rights, at its centre. Consequently, instead of allowing courts to strike down legislation that contravenes human rights, as is the case in many liberal democracies, whether Germany, Israel or the Netherlands, the HRA limits the courts, giving them the power to remedy some violations, but not all.

The first of these powers is in Section 3, and places judges under an obligation to interpret legislation compatibly with human rights ‘so far as it is possible to do so’. What this means is that if legislation, on the face of it breaches someone’s rights – perhaps through discriminating against them – the courts should not simply say that the legislation harms the right and throw their hands up in defeat. Rather, they must look at the legislation and try and preserve both the right and the legislative purpose. For instance, say the government wanted to protect cohabiting partners’ tenancy rights in the event that the partner named on the lease died, ensuring that grief-stricken partners are not facing eviction as they mourn the death of their partner, and that the tenancy rights pass instead to them. In the legislation, Parliament therefore protects ‘spouses’ from eviction in such circumstances, but failing to recognise that gay couples (at the time) can be partners, but not spouses, and so the plain reading of the legislation discriminates against homosexual people.

This was the scenario faced by the House of Lords in 2004, when they found that same-sex couples also fell under the legislation’s protective umbrella. In this case, interpreting the legislation to extend its protection to same-sex couples was not ‘judicial vandalism’, as Lord Bingham put it, because it upheld the purpose of the Act while remedying the discrimination, even if doing so stretched the meaning of ‘spouse’. Such a potent power of interpretation gives the judiciary means of remedying the violation of some rights, letting them reinterpret, but not reorient, legislation, reconciling the need to respect the intentions of Parliament with the dignity of individuals.

But it is when legislation cannot be interpreted in a way that is compatible with rights that difficulties arise. If the purpose of the legislation is inextricably tied up with the violation of a right, as it was in the case of A v UK, where the Parliament passed the Anti-Terrorism, Crime and Security Act, giving the Home Secretary the power to detain non-British nationals indefinitely, the courts can only issue a ‘declaration of incompatibility’ under Section 4. This does nothing substantive to assist the injured party, with s.4 declarations being the judicial equivalent of scratching an SOS in the sand. A declaration makes it easier for the government to remedy the violation, but it does not impose any real obligation on it, or Parliament, to do so. As Lord Kerr said in the Supreme Court’s decision on the legality of assisted suicide, it is ‘always open to Parliament to decide to do nothing’.

In essence, therefore, s.4 declarations are no remedy at all. This leaves the UK’s constitution in the curious position where for less wanton violations of human rights, the courts can meaningfully intervene, but when real harm is done to them- possibly intentionally – judges are left wringing their hands, hoping the government finds its conscience and remedies the wrong.

For the most part, this has been a reasonable compromise, with British governments of all political stripes engaging with s.4 declarations. But if we have learnt anything at all from recent years, it is that governments cannot be trusted to remain faithful to norms and conventions that ask them to act, but do not force them to. And once a convention – particularly one that limits government action – has fallen by the wayside, it would take the election of an astonishingly conscientious prime minister for it to be restored.

Already, we have seen this convention (respect for s.4 declarations) wobble over prisoner voting, with Gordon Brown’s government simply ignoring a declaration of incompatibility, and with with Cameron’s government eventually finding a milquetoast solution that just about satisfied the ECtHR, but not before Cameron said that the idea of prisoners voting made him feel ‘physically ill’. In our current state of constitutional chaos, it is not difficult to imagine an equally controversial case (perhaps Shamima Begum’s, had it come before the Supreme Court in a different guise) leading to a s.4 declaration that Johnson’s government refused to abide by. Indeed, it is not difficult to imagine Johnson’s government revelling in such a refusal, using it as lynchpin in their re-election campaign by painting themselves as tribunes of the people, checking the elitist instincts of the judges.

Ultimately, this exposes rights to the whim of the mob. This is not the approach of a liberal democracy, but of a majoritarian one, where groups or individuals despised by society see their rights sacrificed to political expediency. There is a solution to this, which elevates rights while still ensuring that Parliament retains ultimate sovereignty. This is to invert the operation of s.4, giving the courts the power to strike down legislation they find violates human rights, while also providing Parliament with the right of response, allowing the legislature to vote and reject the court’s interpretation of the right.

Such an approach is not novel. UK courts were previously obliged to strike down legislation that conflicted with the laws of the European Union, and Parliament still retained ultimate sovereignty, even though there the House of Commons did not even have a right of response. And looking further afield, a system like this, which prioritises rights while preserving a legislative role, exists in Canada. There, the Canadian Parliament, which is still ultimately sovereign, is empowered through a ‘notwithstanding’ clause to overturn decisions of the courts on rights, prioritising the legislative interpretation of the right ahead of the judicial.

The courts say that Parliament should be forced to ‘squarely confront’ what it is doing if it is to violate rights. This is not how our constitution works, with the executive – and Parliament – ultimately free to disregard declarations of incompatibility if they consider it politically expedient. It is only by shifting the burden, forcing Parliament to respond to judicial decisions on rights and to candidly admit they are overturning the judges’ interpretation of the rights, that the legislature can be made to confront what it is doing.

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