Why Michael Gove must think carefully about the Human Rights Act

by Carl Gardner on May 26, 2015

Policy Exchange | Creative CommonsA fair amount’s been written about the problems ministers face as they aim to “scrap” the Human Rights Act (to use the words of the 2015 Conservative manifesto). Replacing the Act as it applies in Scotland probably breaches the convention that Westminster does not normally legislate on a devolved matter (which human rights is) without the Scottish Parliament’s consent. Repealing it in Northern Ireland without a like-for-like replacement may breach of the UK’s legal obligations to Ireland, entered into in the British-Irish Agreement of 1998 (see article 2), to do what’s needed to (in the words of Part 6, para. 2 of the Good Friday Agreement)

complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention.

These concerns should be enough to give Conservatives pause. But there’s a deeper reason for caution. The plan is very dangerous from a Conservative point of view even if you ignore those problems. Published last October, the plan promised to do two things in particular that need the most exquisite care.

The Conservatives said they would (page 6 of the October plan)

Break the formal link between British courts and the European Court of Human Rights. In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg

and that they’d

Prevent our laws from being effectively re-written through ‘interpretation’. In future, the UK courts will interpret legislation based upon its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case-law.

Both these proposals involve serious risk, if you’re against judicial activism and judges taking power at the expense of Parliament. I’ll deal with each in turn.

The “formal link” between our courts and Strasbourg case law is created by section 2(1) of the Human Rights Act, which says

A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights …

It’s worth reminding ourselves that this is not a requirement to follow Strasbourg, and that British judges have become noticeably less inclined to do so in recent years. But if the government is determined to change the rule, it has the following alternatives: it could

  • make clear that UK judges may still take Strasbourg rulings into account (which is the same as leaving it up to judges to decide whether to do so or not), or
  • make clear that UK judges may not take Strasbourg rulings into account at all.

The first option would be a purely cosmetic change. If our judges are allowed to take Strasbourg rulings into account, then they probably will. Why wouldn’t they? If the government does this and claims it’s doing something radical, it’ll be conning its Eurosceptic supporters.

But there would be a really serious danger with the second option. If our judges were forbidden even to consider Strasbourg rulings, how would they decide the content of (for instance) the right to respect for private life, or freedom of religion? European judges in Strasbourg at least give lip-service (and often much more than that) to the idea that an international court should be slow to intervene in national democratic decisions. This is the so-called “margin of appreciation” doctrine.

If that body of rights thinking were denied to it, our judges might well be more inclined to consider legal arguments based on case law from national courts in the US, Australia, South Africa or Canada – whose Supreme Court has just gone further than our own and ruled its Parliament’s legislation on suicide in breach of the Canadian Charter of Rights and Freedoms. Our Supreme Court could well be increasingly influenced by these less cautious courts, and become more like them.

The government would love to fight back by arguing that our judges should show restraint, as the European Court of Human Rights has done on assisted suicide and more recently when it permitted France’s ban on the niqab. But reliance on cases like that would be forbidden, of course. Our courts could not even take such cautious thinking into account. Who could complain if, on this basis, British judges became more interventionist, not less? Haven’t the Conservatives said they want to make the Supreme Court “supreme”?

The Tory plan published last October also said

In future, the UK courts will interpret legislation based upon its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case-law.

On interpretation, loosing our judges from their Human Rights Act moorings would, again, be likely to create more problems than it solves.

Faced with a human rights problem affecting legislation, our judges currently have two options. Either they they declare the legislation in breach of human rights (a power the Conservatives have not yet said they want to remove); or they “reinterpret” the legislation, bending it a bit so that it complies with human rights. They do this under section 3(1) of the Human Rights Act, which says

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.

A useful example of this in action happens to be the leading case on human rights interpretation, Ghaidan v Godin-Mendoza. In that case, a gay man had lived with his partner in a rented property for years; and when the partner died, he simply wanted to carry on the tenancy in his own name. But his landlord (Mr Ghaidan) wanted to evict him, and take possession of the flat. The Rent Act 1977 seemed to support the landlord because the relevant provisions allowed the tenancy to transfer automatically only in the case of

a person who was living with the original tenant as his or her wife or husband

the established interpretation of which (that is, an interpretation “based upon its normal meaning and the clear intention of Parliament” to use the words of the Conservative human rights plan) was that it included the unmarried survivors of straight, but not gay, relationships. The House of Lords regarded this as discriminatory, so not permitted by the Convention rights. What to do?

Using section 3 of the Human Rights Act, the House of Lords reinterpreted the Rent Act so that tenancies like this would transfer. The words

a person who was living with the original tenant as his or her wife or husband

would now be read as including same-sex survivors. The House of Lords decided that, faced with a situation like this, they did not have to declare provisions of the Rent Act in breach of human rights.

There are limits to “reinterpretation”, the House of Lords ruled: judges should not use their power to rewrite fundamental principles of legislation. But otherwise, judges should be prepared to update the meaning of legislation to deal with problems like the tenant’s in Ghaidan. I recall no political outcry about the Ghaidan case, which I don’t think is ever cited as an example of human rights mission-creep. Parliament can still restore the pre-Ghaidan law if it wants to.

How could the courts deal with such a case in future? If the power of “reinterpretation” were denied to judges, they could be forced, instead, to declare the relevant legislation incompatible with human rights. A tenant like Mr Godin-Mendoza would be evicted, and Parliament would be forced to consider changing the law regardless of how much other business it has. There would be more (not fewer) headlines about judges condemning Acts of Parliament. In substance the position would be like now, but Parliament would seem more often to obey judicial diktat. Do Conservatives really want this? Before answering, they should realise it may be the best-case scenario, assuming judicial restraint.

There is another, more worrying possibility. If judges weren’t required to interpret legislation according to the Ghaidan approach under section 3 of the Human Rights Act, they’d be free to decide for themselves how to interpret it faced with what they saw as “fundamental rights” problems. How might they approach that sort of question, left to themselves? Let’s consider the recent Supreme Court judgment about Prince Charles’s letters.

This had nothing whatever to do with human rights. After a tribunal had ruled that the letters must be disclosed, the Attorney General invoked the ministerial veto on disclosure, in section 53(2) of the Freedom of Information Act (or “FOIA”).

But (see paras. 56–57 of Lord Neuberger’s judgment) Lord Neuberger invoked the entirely judge-made “principle of legality” to justify a dramatic reinterpretation, cutting down and neutering the ministerial veto deliberately written in by Parliament. Lord Neuberger quoted in support of his radical approach (para. 56) the words of one of his Supreme Court colleagues in a case as recent as 2011:

The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.

The words of section 53 seemed clear enough to one of Lord Neuberger’s colleagues, Lord Wilson. He complained in effect (para 168 of his judgment) that the majority on the Supreme Court (in agreeing with the Court of Appeal)

did not in my view interpret section 53 of FOIA. It re-wrote it.

He, though, was in the minority. The majority of judges felt entitled to veto the section 53 veto because, as Lord Neuberger put it (para. 115 of his judgment)

a decision of a judicial body should be final and binding and should not be capable of being overturned by a member of the executive.

Section 53, he said (para. 115)

enables the executive to overrule a judicial decision, but only “on reasonable grounds”, and the common law ensures that those grounds are limited so as not to undermine the fundamental principle, or at least to minimise any encroachment onto it.

Nor did Lord Neuberger even consider whether the veto might be a “fundamental principle” of the Freedom of Information Act, as he would have had to do in a Human Rights Act case.

The Prince Charles letters case may seem to politicians an ephemeral ruling, about a trivial issue. But legally, it was a somewhat bigger deal. It should worry Tories. This is very likely how judges will approach common law “fundamental rights” interpretation across the board, if section 3 is repealed. It’s less restrained, and less constrainable by Parliament, than the Ghaidan approach judges have arrived at under the Human Rights Act.

Told they must indeed be “supreme”, unshackled from Strasbourg’s increasingly cautious case law and released from the balanced Human Rights Act approach to interpretation, there’s a real risk our judges will use their new-found freedom from Strasbourg and their own invented “principle of legality” to become a more intrusive constitutional court, readier than ever to condemn and rewrite Acts of Parliament. If this is allowed to happen, one day Tories may curse the memory of Michael Gove.

A wise Conservative should take time, and think very hard, before mucking about with the Human Rights Act.

{ 3 comments… read them below or add one }

1 Patrick May 27, 2015 at 09:40

The Human Rights Act 1998 is one of the most badly crafted laws on the statute book and an ill-begotten relic of the Blair government’s meddling with the constitution. There is no need for such a prescriptive statute as the common law (ex p. Brind) was developing our own approach to the ECHR based on our heritage of civil liberties and respect for international law.

The Good Friday agreement is no obstacle to HRA repeal. It was always the intention that the the Northern Ireland Human Rights Commission would put forward a Bill of Rights specific to NI. Further and in any event, a British Bill of Rights would satisfy the requirements of the Good Friday agreement; incorporation does not mean slavish adherence.

The formal link with Strasbourg is in the ECHR itself; there is no need for this to be enshrined in domestic law. There is nothing inherently wrong in allowing judges to decide for themselves on a case-by-case basis whether and to what extent a Strasbourg ruling should be followed. This is basic common sense as demonstrated by Horncastle. ECHR decisions should have no more precedential value than other decisions of international courts.

Unlike the ECtHR, domestic courts are kept in check by the doctrine of parliamentary sovereignty and judgments may be reversed by legislation. By returning to the situation pre-1998, courts would be allowed to continue the ex p. Brind trajectory, eventually developing a Marleasing-type approach to the ECHR, which would have produced the same result in Ghaidan. Neuberger’s principle of legality is nothing new, it can be traced back to Burmah Oil and undoubtedly further still.

Regardless of the HRA, partly as a result of EU membership and the obligations placed on national courts by the ECJ, the Supreme Court was always going to move on from the deferential approach demonstrated by judges such as Hoffmann and Goff. As shown by judgments such as M v Home Office, the winds of change were blowing long before 1998. The fact that this process could be accelerated by the repeal of the HRA is no valid reason to keep this dreadful statute.

2 Andy J May 27, 2015 at 14:42

Thank you for the thoughtful and, as ever, moderate tone of your argument (in contrast say to Matthew Scott’s more strident http://barristerblogger.com/ postings). I have to agree with Patrick supra that many of the impediments you raise are illusory in my view.
Take Schedule 1 and put a new, simple piece of enabling legislation in front of it and let it run. Don’t put anyting into the black letter law about whether or not the UK courts can/can’t must/mustn’t take account of Strasbourg and see what happens. Whatever the courts do, at least it will be within the framework of how society in the UK operates, rather than some half-baked fudge between the cultures of Western and Eastern Europe. And let’s face it the real problem is not what the courts might do, but rather with the phallanx of human rights lawyers who look for ever more cunning wheezes to expand the commonlaw in this area.
Anyway to return to my earlier point, a post-HRA world would look pretty much the same as the postion the UK was in up to 2000, and the sky didn’t fall in then. If people see Art 46 as the stumbling block, then that’s for the Council of Europe’s to sort out. How long ago was Hirst, and what sanctions have been applied to the UK since?
I know this messy approach won’t appeal to your constitional lawyer’s sensibilities, but hey sometimes common sense can play a part in the law too.

3 Andrew May 28, 2015 at 09:38

Hi Carl, long time reader/first time commenting, and thanks for this post.

As Andy J said, there seems to be a lot of cosmetic outrage post-GE without any real target to aim at. Frankly some of the criticism is so over-the-top that it may lead to Ministers simply ignoring opposing views rather than listening to those with genuine concerns.

I think two things are key:

1) The debate over the HRA must not be politicsed. Left-wing/right-wing divisions will only lead to a ill-tempered debate that gets us nowhere — full of sound and fury, signifying nothing. Michael Gove has made the right first step by slowing down the timetable so that he can fully understand both sides of the argument.

2) There’s nothing wrong with refining the HRA. Governments rarely get legislation right first time, and this is as true for the 1998 Act as it is for any other piece of legislation. I have some sympathy for Patrick’s views – the ECHR was dumped into UK law with very little thought about the possible implications, and the effects have been considerable – and often unexpected.

A new Human Rights Act 2016, restating the legislation in full with some tweaks to the methods of interpretation, seems to me to be the right way to go. The Horncastle judgement should be enshrined in statute, emphasising the priority of the UKSC over the ECHR.

The common law operated successfully for a very long time, before the blunderbuss of the ECHR was written directly into UK law. A little more emphasis on what’s right for this country, and a little less on ECHR judgements, would seem to be the right way to go.

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