The Human Rights Act 1998 (HRA) is one of the most consequential, and controversial, pieces of legislation on the statute book. The significance of the impact that the HRA has had on our constitution is laid bare in a new report by Policy Exchange’s Judicial Power Project. Published yesterday, the report studies twenty-five cases decided since the HRA came into force in October 2000 and shows how it has drawn British courts into matters that would never previously have been put before them — forcing, or allowing, them to answer questions that would once have been thought obviously to be political questions, to be resolved by Parliament. 

The problem with the HRA is not necessarily that British judges have bad political judgement. Their political views and policy preferences should be irrelevant — and largely would be, if the HRA did not require them to evaluate the merits of policy or legislation. The Act empowers litigation to supervise government and Parliament on uncertain grounds, with our courts understandably usually following the lead set by the Strasbourg Court. The result is that our courts now engage in constitutionally questionable forms of moral and political decision-making that they lack qualification or responsibility for. 

In some of the cases that our paper considers, the courts question the fundamental distinction between citizen and non-citizen, which Parliament often aims to uphold when legislating. One saw this in Tigere (2015), which concerned a non-citizen’s alleged entitlement to a student loan, and in the most famous HRA case of all, Belmarsh (2004), where the House of Lords misunderstood and then denounced legislation authorising detention of foreign terror suspects pending their deportation. 

Other cases, like Roth (2002), Thompson (2008), and Nicklinson (2014), saw the courts explicitly second-guess the appropriateness of how Parliament resolved very sensitive moral and ethical policy issues. In Roth, the Court of Appeal denounced legislation imposing financial penalties on transport companies in relation to illegal migrants that had stowed away in their vehicles. In Thompson, the Court of Appeal ruled that it was an unlawful breach of privacy for the police to enter a (dangerous) convicted paedophile’s property during the daytime, to review his internet use for compliance with a court order restricting his internet access for the purposes of work, study, seeking employment, and non-sexual recreational purposes. The court said while Parliament had given the sentencing judge authority to grant this kind of order, it had to be quashed as it failed to strike the correct balance between protecting the public from serious sexual harm and the individual’s right to private life. Finally, in Nicklinson several judges of the Supreme Court were willing to find that Parliament’s decision to prohibit assisted suicide was a disproportionate interference with the right to privacy. Several judges effectively argued that striking a sound balance between protecting human life, and respect for privacy, would require Parliament to permit some people to have assistance in being killed or committing suicide. 

What should be uncontroversial is that the merits of the legislation turned on fundamental moral questions

Reasonable people can and do seriously disagree about the morality or good sense of the kinds of legislative measures challenged in these cases. What should be uncontroversial is that the merits of the legislation turned on fundamental moral questions, such as the balance between individual interests and the public good, and on the practical effects and risks of legislative change. Prior to the HRA, it was rightly accepted that these were not matters in respect of which lawyers or judges enjoy any particular skill or insight.

Other cases discussed in our report show how the HRA has led judges to employ legal techniques in tension with fundamental constitutional principle. Several cases turn on judicial reliance on section 3 of the HRA, which provides that legislation is to be read compatibly with Convention rights whenever possible. Cases like Offen (2000), R v A (No 2) (2001), and Sim (2003), show that this provision has not simply been read as a sensible presumption about Parliament’s intentions, but almost as a judicial power to rewrite legislation. Offen saw the Court of Appeal reverse the intended effect of legislation requiring judges to impose life imprisonment on persons convicted of two serious specified offences. In R v A, the House of Lords turned the meaning of recently introduced rape shield legislation on its head, allowing cross-examination of complainant’s prior sexual history whenever the judge thinks this is justified. Finally, in Sim the Court of Appeal reversed the statutory presumption that the parole board should only release an offender if satisfied that he no longer posed a risk to the public — to instead rule that he must be released, unless the parole board were satisfied that he did pose a risk.

Such cases turn ordinary legal technique on its head, undermining Parliament’s authority and introducing uncertainty into legal reasoning and practice. The task of amending statutes in our constitution has always been, properly, the unique function of our elected and politically accountable Parliament and not the courts. 

While Policy Exchange’s new report is critical of how judges have been deciding cases under the HRA, in the end, it is Parliament that is to blame for enacting the HRA in the first place, and not repealing it since then. That said, some senior judges have not helped the public think clearly about human rights law, confusing compliance with European human rights law with respect for human rights or the rule of law. 

Repealing the HRA would not mean denying the moral importance of human rights. The UK constitution was able to protect human rights long before the HRA was enacted, or the European Convention on Human Rights (ECHR) was even conceived — by means of legislation enacted by Parliament and common law subject to legislation. It was able to safeguard human rights in this way without corroding parliamentary democracy and the rule of law. Today’s report shows the wisdom of the pre-HRA constitutional arrangement and why there are sound reasons for returning to it.