In line with its manifesto commitment, the Government proposes to repeal the Human Rights Act 1998 and to replace it with a British Bill of Rights.  The details of the proposal have not yet been made public.  Notwithstanding this lack of detail, defenders of the HRA have (understandably) been anxious to discredit it in advance and have seized on Monday’s report from the Lords EU Scrutiny Committee as an authoritative refutation of the case for human rights law reform.  The Committee’s inquiry was intended to coincide with the Government consultation on the proposals, a consultation exercise that has been pushed back until after the Brexit referendum.  Still, the inquiry went ahead and concludes in broad terms that the case for reform is weak and that the case against is strong.

The Committee’s conclusions are problematic in a few different ways.  First, the merits of enacting a British Bill of Rights turn on the detail, which is not yet known.  Notwithstanding the excited reception of the Committee’s reports by some, it is difficult to achieve a knockout while shadowboxing.

Second, as others have also noted, the Committee is more than a little outside its remit in undertaking this inquiry at all.  The implications of repealing, replacing or amending the HRA have at best a tangential connection to EU law.  The Committee strives valiantly to establish such a connection, speculating about whether exit from the ECHR would also require exit from the EU (answer: no), about whether repeal of the HRA would supercharge litigation under the EU Charter of Fundamental Rights (answer: probably, on which more below), and about whether exit from the ECHR and/or repeal of the HRA would frustrate cooperation with other member states within the EU (answer: perhaps).  Strikingly, the most interesting parts of the Committee report, about human rights law reform and devolution, have nothing whatsoever to do with EU law or membership.

Third, the Committee reaches its conclusions on the basis of a limited range of evidence, which calls into question its assertions about the weight of evidence and the force of the case made before it.  The Secretary of State outlined the case for reform in quite general terms, presumably not wanting to begin the consultation exercise on the hoof.  Otherwise, the Committee heard from only one critic of existing human rights law arrangements outside the ministerial team, Martin Howe QC.  Without an open call for evidence, one might have hoped the Committee would hear from a broader range of views (to be fair, we do not know what efforts the Committee went to in private to invite others to attend).

This limited evidence base is important.  So too is the strong public support for human rights law of some of the Committee’s members: the chair, Baroness Kennedy, is chair of JUSTICE and another committee member is vice-chair, all of which is perfectly legitimate and quite properly disclosed in the report, but is relevant in evaluating its conclusions. It seems reasonable to speculate, however, that the inquiry may have been set up, notwithstanding the Committee’s remit, to give the still unpublished British Bill of Rights a good kicking.

These factors may explain some of the dubious assumptions that underpin the report.  It is taken for granted throughout the report that the HRA is the principal means by which British law protects human rights, that reform of the HRA would either be redundant or would dilute human rights, and that to replace the HRA is to abandon the commitments set out in the ECHR (the report often runs together repeal of the HRA with exit from the ECHR).  The Committee asserts that the HRA is consistent with British traditions, such that the concern about foreign rule is simply confused.  And it sees the only alternative to rights-protection by way of the HRA (or some equivalent) as the common law, rather than parliamentary self-government supported by the rule of law.

What is striking about this series of assumptions is how they fail to address, or even to perceive, the intellectual case for reform.  This is a case made out by many academic lawyers and others, from a wide range of political perspectives.  One hopes this case will inform the eventual detailed proposals for human rights law reform, and that other committees will do a much better job of engaging with the intellectual case for reform.  The HRA is not holy writ.  And neither the HRA nor even continuing membership of the ECHR is constitutive of rights protection. Lord Falconer was absurdly wrong a few weeks ago in asserting that talk of exit from the ECHR amounts to abandoning the UK’s “68-year commitment to human rights”: the UK’s record in protecting rights is much older than this!

The problems with the status quo are substantial.  In brief:

  • The ECtHR has, by its own admission, gone well beyond the commitments agreed by the signatories to the ECHR, developing a case law that is often excessive, poorly reasoned and problematic.
  • The enactment of the HRA has made Strasbourg jurisprudence much more significant in domestic law and has increased the political pressure on the Government and Parliament to conform to its rulings.
  • Perhaps more importantly still, the introduction of the HRA has changed judicial culture in far-reaching ways, as many judges have noted, some with approval and others with regret.
  • The Act undermines the rule of law in important ways, not least by way of the uncertainty of the requirement, in s 3, to strive to interpret legislation consistently with ‘convention rights’.
  • And the strictures of the Act, and the related reception of ECtHR jurisprudence, pose a (rising) challenge to the integrity of parliamentary self-government.

Concerns about rule by a foreign court are not novel or marginal as Lord Hoffmann’s public contributions on point confirm.  We would add that concerns about rule by any court are well-established and well made.  The UK was a just, decent democracy before the ECHR existed and before the HRA was enacted.  Like Australia and New Zealand, to mention two other close comparators, the UK is fully capable of governing itself well, of protecting human rights and the common good, without subjecting itself to rule by an international court.  With or without the enactment of a British Bill of Rights, there is every prospect that the UK outside the ECHR system would be a vibrant, just parliamentary democracy that secured the rule of law.  But of course, repealing the HRA is not to exit from the ECHR and it may be that the UK should remain within the ECHR, with Parliament resolving to resist more often the ECtHR’s misinterpretation of the Convention. The standing possibility that an international court might exceed its jurisdiction, and hence lose its entitlement to be followed, is outlined (in the different context of EU law) by our Supreme Court in Pham v Home Secretary.

The Committee asserts that British courts do not march in lock-step with Strasbourg, such that reform of s 2 of the HRA (which requires judges to take ECtHR decisions into account) is unnecessary.  This analysis skates over considerable complexity.  It is true that the approach of British judges to this question has changed over time – giving rise to still more uncertainty – and in some few cases British courts have resisted.  In other cases they have gone beyond Strasbourg, which is itself problematic.  But the logic of the HRA, with its concern about the UK’s international obligations, requires our judges to follow Strasbourg and the capacity of British courts to resist wrong-headed judgments is limited indeed.  And from Strasbourg’s perspective, the UK is just as much in breach of the ECHR if the breach is the result of a court judgment as if it is the result of an enactment or executive action.

What is the relevance of the EU Charter to all this?  Strictly, one might say it is and should be irrelevant.  Whether the HRA is repealed has nothing to do with how this body of EU law is understood or comes to bear in the UK.  But, the Committee in effect notes, human rights lawyers are inventive and in the absence of the HRA will frame similar arguments by way of the Charter.  This is important because the Charter’s remedies are much more significant and, like other EU law, can result in disapplication of statute.  (This inventiveness, aided by some strong hints from the Supreme Court itself, has also manifested itself in increasing reliance on ‘common law’ arguments, which confirms that effective human rights law reform will be a difficult enterprise.)  The Committee assumes that if the HRA is not replaced inventive human rights lawyers will not explore the possibilities the Charter offers.  This seems to us highly unlikely, not least in view of the high-profile uses of the Charter by the Court of Appeal last year.  There is every reason to expect that Charter litigation will grow, regardless of whether the HRA is repealed or replaced.

In contrast to its anxiety about any change to the HRA, the Committee is awfully sanguine about the Charter, preferring to believe that the risks of excess, on the part either of the Court of Justice of the European Union, or domestic courts, are limited.  We note that this belief is in some tension with its argument that the Government should prefer HRA litigation to Charter litigation.  The reach of the Charter turns on how the formulation “acting in the scope of EU law” is interpreted, which may yet be very broad – the leading Frannson case itself is not encouraging.

The merits of existing human rights law arrangements, and the case for their reform, should be the subject of serious consideration.  This requires confronting the best arguments for reform and not conflating veneration of the HRA with respect for rights themselves.  The question that needs to be decided is which institutional arrangement best protects rights and the common good, consistent with (British traditions of) the rule of law and democratic self-rule.  The Committee’s report is not at all an authoritative dismissal of the case for reform of the legal status quo.

Richard Ekins
Graham Gee