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.