Twenty years after the Human Rights Act (HRA) went on to the statute book, it is time to review how it brings the European Convention on Human Rights (ECHR) into UK law. So, today the government is launching a consultation on reforming our human rights framework and replacing it with a modern bill of rights.
It is important to be clear from the outset that the UK will continue to be a party to the ECHR. British barrister David Maxwell Fyfe, who would go on to become a Conservative lord chancellor, played a key role in drafting the convention. We are determined to build on that legacy.
Legal minds from the UK were so influential in the creation of the ECHR precisely because UK law and legal practice is so well-respected. As we reform human rights in our country, we want to be both proud of that tradition and confident in the idea that it leads to just outcomes.
It is important to distinguish between the ECHR and the Strasbourg court. The text of the ECHR is not contentious – what has led to debate is the way the text has been interpreted by the Strasbourg court, which does not seek to ascertain the meaning it had when signed, but rather construes it as a 'living instrument'.
It’s against that background that Section 2 of the HRA has been interpreted as a duty to follow Strasbourg case law, which has led to outcomes which the people of the UK do not always recognise as being the right ones. That is not to say judges have been misapplying the law. But our proposals would reaffirm that our domestic courts should begin with the words of the convention rights themselves, and the decisions of domestic courts on the point.
Just as political decisions must be made by politicians, not judges, so too, binding judicial interpretations should be made by common law judges. We have the best judges and courts in the world – so rather than Strasbourg having the final say on the application of human rights in the UK context, we think it should be the UK Supreme Court and our highest-ranking judges who should be the ultimate judicial arbiters.
When interpreting legislation, the courts aim to interpret it based on the meaning of the words used by parliament at the time it was passed. Section 3 of the HRA provides for a different test - legislation is to be interpreted and, if necessary, the express wording of legislation adapted, to give it a meaning which is compatible with the relevant convention rights ‘so far as it is possible to do so’. Regrettably, Section 3 of the HRA has sometimes pushed judges to stray too far into legislating.
The case law has ebbed and flowed but it’s time to put the matter on a firmer footing. A less expansive interpretive duty would ensure greater legal certainty, and restore the balanced approach to the relationship between parliament and the courts on human rights issues that we have traditionally enjoyed.
And it will return some much-needed democratic accountability to the process. It must be right that the people of this country through parliament decide on the right legislative balance we strike as a society, particularly with determining sensitive issues of public policy or the allocation of taxpayer-funded resources.
This process of reforming our human rights framework builds upon the UK’s great history of rights and freedoms, running from Magna Carta in 1215, through the Claim of Right in 1689, right up to the 1918 Representation of the People Act and beyond.
We want to cherish that legacy, and we are open to your ideas. Please add your views to the consultation – to help us create a bill of rights that lives up to our traditions and truly works for the whole of the UK.
Lord Wolfson of Tredegar is a minister at the Ministry of Justice
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