Three months is a long time in politics. Until September, it looked as if Lord Chancellor Robert Buckland would be responsible for leading the first overhaul of the Human Rights Act (HRA) since it was enacted in 1998. But then he was dropped from Cabinet, and this important task now falls on the shoulders of Dominic Raab, who has just published his proposals for reform, along with the report of a review into the functioning of the Human Rights Act, led by retired judge Sir Peter Gross.
The Gross Review makes a number of useful recommendations for reforming the HRA. But still it defends the status quo in the main. Raab, who as the responsible minister is not bound by its recommendations, has opted to go further. His proposals for legislative reform contain many good ideas, but the minimalist approach of the package raises some difficult questions.
Under the announced plans, the HRA will be replaced by a new Bill of Rights, which will include rights not at present covered by the European Convention of Human Rights, as well as modifying how the European Convention is given effect in the UK’s own courts. British courts will no longer be required to consider the case law of the European Court of Human Rights. Judges will no longer be able to effectively rewrite legislation to make them compatible with the Convention. And would-be claimants in human rights cases would have to show that they have suffered from “significant disadvantage” before bringing a claim.
The strengthening of free speech protections and of the right to a trial by jury should be uncontroversial. The same should be true for ending the practice of allowing courts to insert and delete words from Acts of Parliament, a practice which gives judges an expanded law-making role for which they lack democratic legitimacy. Indeed, some of the country’s most senior judges have expressed discomfort about possessing such a power. And the new permissions stage in human rights actions may filter out some frivolous claims, though its impact in practice may be limited.
But neither are the proposals a panacea for reversing the expansion of judicial power. Freeing British courts from a duty to take into account the European Court’s case law might well be a Pyrrhic move, since British judges have sometimes been willing to go much further in their interpretation of Convention rights than the judges in Strasbourg. And though the UK Supreme Court has been noticeably more restrained in its rulings under the leadership of Lord Reed, counting on the luck of the draw in judicial temperament is hardly a sustainable basis upon which to build a constitution, as the American example should remind us.
Before his sacking, Robert Buckland had announced ambitious plans to re-examine the UK’s constitutional machinery, notably the current system of judicial appointments — a legacy from New Labour — as well as the role of the Supreme Court, another back-of-the-envelope Blairite invention. Though parliamentary time is scarce, Raab would be well-advised to push ahead on this front simultaneously, so as to ensure the effectiveness of his HRA proposals.
One might question the wisdom of rebranding the Human Rights Act as a Bill of Rights. The renaming might suggest that human rights have been ‘domesticated’; but domestic legislation cannot itself change the UK’s international legal obligations under the ECHR. So far as international law is concerned, the Strasbourg Court will continue to have the final say over the application of Convention rights over the UK unless the country withdraws from the Convention — a step which both Buckland and Raab have so far ruled out. Parliament has refused to conform to the Strasbourg Court’s case law before, notably in relation to prisoner voting. If the UK is to remain party to the Convention and to uphold its own understanding of human rights, Parliament may have to do so again in the future, which will create further controversy.
Taken together, this legislative package is a welcome, but limited, first step in the overhaul of the UK’s human rights protection framework. Much will depend on the final shape of the proposals, still subject to a further public consultation. And it may well be that the government will ultimately come to agree with Lord Sumption, who recently argued that Britain’s withdrawal from the ECHR is all but inevitable because of the impossibility of effecting the sort of change desired by a substantial segment of the British public within the strictures imposed by the Convention. This is the stark political choice which the government ultimately cannot avoid.
Yuan Yi Zhu is a Senior Research Fellow at Policy Exchange’s Judicial Power Project and teaches Politics at the University of Oxford
