The government’s Bill of Rights Bill has been raised from the undead. This Bill gets rid of the Human Rights Act 1998 (HRA) and, despite the benign title, replaces it with something less protective of human rights.
Through the HRA, parliament empowered British judges to protect many rights contained in the European Convention on Human Rights (ECHR). It means that British residents do not need to rely on the European Court of Human Rights in Strasbourg to enforce those rights. As the government’s Independent Human Rights Act Review found, due to the HRA very few UK cases go to Strasbourg and, even when they do, the UK rarely loses.
The Bill of Rights Bill contains many proposals that weaken the protection of human rights. This includes the repeal of section 3 of the HRA. As the following three cases illustrate, this plan is regressive.
Under section 3, parliament requires judges to ‘read and give effect’ to legislation ‘so far as it is possible to do so’ to be compatible with human rights. Judges use section 3 as a last resort when other ways of interpreting the legislation are not enough to protect human rights. Judges can use section 3 even when the legislation is not vague or ambiguous, allowing the most rights-protective interpretation possible.
The first case, Ghaidan v Godin-Mendoza, was decided in 2004 and concerned a same-sex couple – Hugh Wallwyn-James and Juan Godin-Mendoza – who had lived together in rented accommodation for 18 years. Mr Wallwyn-James died and he was the tenant at the couple’s home. Under housing legislation at the time, when a tenant died their partner could inherit the tenancy if they were ‘living with the original tenant as his or her wife or husband’. This included couples who were not legally married but who lived as though they were. Before the HRA, the courts decided that this did not cover same-sex couples.
In short, the law discriminated. A same-sex partner could face substantial rent increases and even eviction, whereas an opposite-sex partner could not. The court used section 3 and the HRA’s prohibition of discrimination in Article 14 to read ‘as his or her wife or husband’ so that it protected unmarried same-sex couples as well as unmarried opposite-sex couples. Using section 3, a discriminatory law was made non-discriminatory.
The second case, Vanriel and Tumi v Home Secretary decided in 2021, involved victims of the Windrush scandal. Vanriel lived in the UK between 1962 and 2005 and raised two children. Due to a combination of the death of his parents, the birth of a child, and Home Office errors, Vanriel remained in Jamaica for around 13 years after 2005. This was a problem because a law regulating British citizenship contained a rule that a person had to be physically present in the UK for five years before they made the application. As the judge put it at para.38 of his decision: ‘[T]he natural and unambiguous meaning... is that there is no relevant discretion to disapply the 5 year rule. [The result is that] citizenship will be refused.’
However, at para.105 he made clear that: ‘[A] section 3 interpretation may change the unambiguous meaning of the words in the legislation.’ Ultimately, at para.113 the judge concluded that, using section 3, it was possible to give effect to the law as if it contained a discretion to disapply the five-year rule where it could not be satisfied due to Home Office errors. Section 3 proved vital to people like Vanriel who would otherwise face significant injustice at the hands of administrative error.
The third case is O’Donnell v Department for Communities, decided in Northern Ireland in 2020. The Department for Communities (the Northern Ireland equivalent to the DWP) refused to provide Michael O’Donnell with Bereavement Support Payment (BSP) after the death of his wife, because his wife had not paid enough national insurance contributions in her lifetime due to disability. Where a deceased spouse had not paid national insurance, the legislation prevented a claimant from receiving the benefit. The effect of the law was to discriminate against disabled people. The judges used section 3 to give effect to this legislation so that, if the deceased was unable to pay national insurance because of disability, a claimant could nevertheless receive BSP.
A judge in the English case of Jwanczuk v Secretary of State for Work and Pensions, decided in 2022, used section 3 to the same effect while interpreting the equivalent legislation covering BSP in England and Wales. This case is currently under appeal.
Without section 3, the alternative is for a court to declare that the legislation violates human rights using a ‘declaration of incompatibility’. But because these declarations do not prevent the legislation being enforced, the European Court of Human Rights has found that they are not effective remedies. Declarations of incompatibility do not ‘strike down’ or invalidate legislation. The individual gets nothing immediate to change the outcome in their case. The Bill of Rights Bill preserves declarations of incompatibility and we agree with that; but without section 3, they are not enough.
At most, after a declaration of incompatibility the individual can lobby parliament to change the law, hopefully retroactively to cover their case. Alternatively, they can lobby a minister to pass a so-called ‘remedial order’, which amends the legislation that violates human rights. But parliament and government are not obliged to listen and, even if they do, these options are more costly and take longer. The two latest ‘remedial orders’ responding to declarations of incompatibility, for example, relate to court judgments in 2020 and 2017. It will probably be well into 2023 before the orders are passed. Declarations of incompatibility cannot replace the immediate protection that section 3 gives. Being able to lobby a minister after he had been evicted would have been no comfort to Juan Godin-Mendoza.
The loss of section 3 would remove one of the most effective remedies in the HRA. Its repeal should be opposed.
Alice Stevens is a solicitor and Lee Marsons a research fellow at the Public Law Project
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