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The Human Rights Act and ECHR as a threat to UK sovereignty

The Human Rights Act 1998: No Future?

Le Human Rights Act de 1998: No Future?
Peggy Ducoulombier

Résumés

Cet article se penche sur les menaces qui pesaient sur l’avenir du Human Rights Act 1998 sous le gouvernement conservateur de Boris Johnson, au vu des critiques formulées depuis plusieurs années par les acteurs du monde politique, et des questionnements gagnant également le monde judiciaire. Cette analyse défend la thèse, appuyée par la commission indépendante chargée d’examiner le Human Rights Act, que les critiques soulevées par le gouvernement conservateur de Boris Johnson sont largement infondées et que les propositions de réforme du Human Rights Act affaibliraient la protection des droits humains au niveau national, tout en augmentant le risque de divergence avec la Cour Européenne des Droits de l’Homme.

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Introduction

  • 1 This paper is based on a communication presented in March 2022. It is up to date with the p (...)

1The choice of this contribution’s title, through its tribute to the punk movement as a political and social protest movement, is a way of recognising the beneficial disruption that the Human Rights Act (thereafter the HRA) has brought to the UK legal order.1 It is undeniable that there was a “before” and an “after” the entry into force of the HRA, both in terms of human rights protection and in terms of separation of powers. Indeed, judges gained important powers in the control of administrative and legislative action thanks to the HRA. However, it does not mean, as has been propounded by Conservative governments and certain academics in recent years, that the HRA has led judges to ignore the boundaries of their constitutional function.

2Talking about the future of the HRA requires us to look at the past. Despite undisputable success in limiting the number of applications to the European Court of Human Rights (thereafter the ECtHR), gradually the HRA was perceived as being responsible for the disruption of the UK Constitution, at least understood, in an orthodox manner, as considering parliamentary sovereignty as an absolute. Year after year, the impression that something was wrong with the HRA was fuelled by the Conservative Party, with a first attempt to discuss the need to replace it in 2011/2012, with the Commission on a British Bill of Rights. Once Brexit was cared for, the HRA became once again the target of the Conservative Party. The Conservative government of the day decided to set up an Independent Human Rights Act Review in 2020 (thereafter the IHRAR), with terms of reference of the review fixated on specific issues, namely the relationship between UK courts and the ECtHR and the balance between constitutional powers. Before turning to the future, through the analysis of the IHRAR report and the consultation on a “modern Bill of Rights”, let us analyse how the HRA has come under attack in the past few years.

The Human Rights Act under attack

3The HRA has been under attack from the Conservative Party for years and scepticism seems to have spread to the judiciary, which is now more cautious towards the HRA than it was at its inception.

The political actors’ attitude towards the HRA

  • 2 The HRA is often portrayed as non-British, importing foreign law, elaborated by foreign j (...)
  • 3 Conservative Party, Invitation to Join the Government of Britain, 2010, 79.
  • 4 See Commission on a Bill of Rights, A UK Bill of Rights, The Choice Before Us, (...)
  • 5 Conservative Party manifesto, Strong Leadership, A Clear Economic Plan, A Brigh (...)
  • 6 S.2 of the HRA: Interpretation of Convention rights: (1)A court or tribunal det (...)
  • 7 Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.

4Quickly after the entry into force of the HRA, the Conservative Party started its campaign to repeal it, using populist and nationalist arguments.2 In 2010, the Conservative Party proposed to replace the HRA with a “UK Bill of Rights”.3 The coming into power of the coalition government allowed for the setting up of a commission, which failed to come to an unequivocal conclusion on the need to repeal the HRA and to replace it with a so-called British Bill of Rights.4 In 2010, the rhetoric seemed rather restrained if compared to the one we find in the 2015 manifesto, promising to “scrap” the HRA and reduce the role of the ECtHR.5 It was proposed to sever the links with the ECtHR, giving the impression that UK courts are bound by the ECtHR’s rulings. However, section 2 of the HRA makes it clear that UK courts must only take into consideration the ECtHR case law, without being bound by it.6 The relief offered by the Brexit process was unfortunately temporary. Nevertheless, the 2019 manifesto revealed a change in tone, which may be connected to the fact that the post-Brexit agreement has made it more difficult (but not impossible) to withdraw from the ECHR or repeal the HRA, as this may lead to a reduction in the level of protection offered to fundamental rights on the domestic level. Therefore, the attack became indirect, albeit no less dangerous as it put into disrepute the constitutional function of the judiciary. The manifesto talked about an “update”, so as to achieve a so-called better balance between individual rights, national security and effective government, an idea that we will find in the consultation paper on a modern Bill of Rights.7

  • 8 See Richard Ekins, submission to the Independent Review on the Human Rights Act, § 49, an (...)

5This defiance towards the judiciary did not only come from the government but was also fuelled by certain academics, such as Professor Ekins and other members of the Policy Exchange’s Judicial Power project. They supported the idea that judges had strayed from their role, thanks to the powers granted to them by sections 3 and 4 of the HRA,8 which respectively provide for the duty to interpret the law in accordance with ECHR law so far as it is possible to do so, and give the superior courts discretionary power to issue a declaration of incompatibility of a legislative provision.

  • 9 See in section 6 of GFA: The British government will complete incorporation into Northern (...)
  • 10 Article 2(1): The United Kingdom shall ensure that no diminution of rights, saf (...)
  • 11 See, for instance, regarding the “legacy cases”: In the matter of an application by (...)
  • 12 Maggie Beirne, “A Response to the Lecture by Shami Chakrabarti: Human Rights or Citizen’s (...)

6Even if the Conservative Party was pushing forward the idea of reforming or repealing the HRA, the state in which the union finds itself should lead any government to err on the side of caution. Resentment created by the manner in which the Brexit process was implemented seems to have reinforced the will of the devolved nations to defend the HRA. If the Scottish government never misses an occasion to support the HRA, so as to stress its difference with the UK government, the situation in Northern Ireland is even more complex as the HRA forms part of the peace process and of the Good Friday Agreement.9 In addition, the protocol on Northern Ireland seems to reduce the possibilities of altering the HRA, as there is a commitment to maintaining the level of human rights protection.10 Lastly, the role of the HRA has proved to be central for the protection of individuals.11 In light of the renewed tension created by the Brexit process and its aftermath, any government would be probably ill-advised to pursue amendments of the HRA in spite of the devolved institutions’ opposition.12

7Let us now turn to the relationship between the judges and the HRA to test the Conservative government’s assertions of an unacceptable power grab by the judiciary. 20 years of HRA application reveal that the judiciary embraced the powers conferred to them by Parliament but that the relationship has evolved and that the criticisms raised by the Conservative government are ill-founded.

The HRA and the judiciary: from passion to reason

  • 13 Ghaidan v Godin-Mendoza [2004] UKHL 30, see Lord Nicholls, § 26: “Section 3 is a key sect (...)
  • 14 Ibid., see Lord Nicholls § 29-30: “[…] It is now generally accepted that the application (...)
  • 15 S.3 of the HRA reads as follows: (1) So far as it is possible to do so, primary legislati (...)
  • 16 Bellinger v Bellinger [2003] UKHL 21.
  • 17 See R (on the application of Elan-Cane) v Secretary of State for the Home Depar (...)
  • 18 See for instance Bellinger v Bellinger, op. cit., Lord Nicholls § 36-38.
  • 19 Gilham v Ministry of Justice [2019] UKSC 44, per Baroness Hale, at § 39: “In Ghaidan v (...)
  • 20 See Ghaidan v Godin-Mendoza, op. cit., Lord Nicholls, §33, and Lord Rodger, § 1 (...)
  • 21 Besides Bellinger v Bellinger see, for instance, AR v Secretary of State for Wo (...)
  • 22 S. 4 of the HRA reads as follows: Declaration of incompatibility. (1) Subsection (2) appl (...)
  • 23 See Lady Hale in McLaughlin [2018] UKSC 38, § 43: “[…] A declaration of incompatibility d (...)

8It cannot be denied that the HRA has contributed to the evolution of the UK constitution. Judges did not hesitate to make use of the new powers given to them by the Act, but their objective remained to give effect to parliamentary sovereignty, not to usurp it.13 In the case of Ghaidan v Godin-Mendoza,14 the strength of the interpretation powers under section 315 was acknowledged, but guiding principles were drafted to limit their use in a way which might be considered “unconstitutional”. In addition, this case must be read in light of other cases, such as Bellinger v Bellinger16 or more recently R (on the application of Elan-Cane) v Secretary of State for the Home Department,17 imposing limits on this power.18 Therefore, even if section 3 goes beyond the usual rules of statutory interpretation,19 it does not put parliamentary sovereignty into question by allowing an ECHR-compliant interpretation that would go against the “grain” or against a fundamental feature of legislation,20 and this limitation is often enforced.21 Interpretation in compliance with Convention rights takes into account the separation of powers, respect for institutional competence and the democratic principle. Moreover, Parliament remains free to legislate in contradiction with a court’s decision. As far as section 4 is concerned,22 in light of the Diceyan orthodoxy according to which no court can question the validity of an Act of Parliament, it may seem revolutionary as it allows judges to rule that Parliament acted in a manner incompatible with Convention rights. It is however well-known that this power does not entitle courts to disapply incompatible legislation, let alone strike it down. In addition, declarations of incompatibility (thereafter DOIs), which are the preserve of a handful of judges, are a discretionary remedy, and leave to the government or Parliament the political decision to act on them.23

  • 24 15 declarations made since 2013, out of a total of 43 since the HRA was impleme (...)
  • 25 See for instance Chester v Secretary of State for Justice [2013] UKSC 63.
  • 26 R (on the application of Steinfeld and Keidan) v Secretary of State for International (...)

9Moreover, for the past 10 years, the position of the judiciary towards the Act has evolved. In the areas where the Act leaves some discretion to judges, changes have occurred. Judges have accustomed themselves to the Act and this led to emancipation from the ECtHR (when it comes to section 2) and sometimes from the Act itself (with the growing reference to the common law in the area of human rights protection). Judges have also exercised caution in the way they use section 4. One notes a decrease in the number of DOIs.24 Arguments based on the institutional competence of Parliament have sometimes led judges to shy away from this remedy. In certain cases, judges have shown reluctance to use DOIs while questioning at the same time the law’s compatibility with Convention rights.25 However, no definitive conclusion can be drawn since DOIs have recently been contemplated or resorted to in sensitive areas. For instance, in the “abortion” case, although the majority considers that the Northern Ireland Human Rights Commission has no standing to bring the case, the majority declared the law to be incompatible with Convention rights although no official DOI can be made. In the case of Steinfeld and Keidan,26 the Supreme Court declared the exclusion of heterosexuals from the civil partnership scheme incompatible with the Convention.

  • 27 See R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23; R (A (...)
  • 28 Secretary of State for the Home Department v AF [2009] UKHL 28, § 98.
  • 29 See for instance R v Spear [2002] UKHL 31.
  • 30 See Lord Slynn in Alconbury, op. cit., § 26: “[…] Although the Human Rights Act (...)
  • 31 See R v Lyons (No.3) [2002] UKHL 44, Lord Hoffmann, § 46: if “an English court considers (...)
  • 32 See for instance R v Newell; R v McLoughlin [2014] EWCA Crim 188; R (Haney, Kaiyam and Ma (...)
  • 33 For an exception, see McLoughlin, op. cit.

10The other area where time has done its work is in respect of section 2. At first, judges developed the principle of the mirror interpretation27 and applied Strasbourg’s case law, even when it could be felt that they did not agree with it. To quote Lord Rodger: “Strasbourg has spoken, the case is closed”.28 This position prompted controversy. Progressively, the mirror interpretation was put aside, in favour of following the ECtHR in most circumstances but also developing exceptions to this rule. This possibility to depart from Strasbourg’s case law has always been mentioned, even in early case law.29 However, what was presented as an exception when there was no constant or clear European case law,30 rapidly spread to situations where Strasbourg might have misunderstood or overlooked a fundamental feature of UK law.31 Then it progressively expanded to situations where UK judges simply disagreed with the ECtHR,32 most of the time to the detriment of the applicant.33 Nevertheless, respect for ECtHR case law remains high.

  • 34 Although this could already be seen in early case law (see R (Daly) v Secretary of State (...)
  • 35 See Lord Toulson in Kennedy v The Charity Commission, op. cit., § 133.

11The new interpretation of section 2 was developed in parallel with a renewed interest for common law, something that we may find both in the report of the IHRAR and the government consultation paper. Several justices of the Supreme Court insisted on the fact that common law should be the starting point of the analysis of a case, and that the HRA had not been intended to suppress it.34 Of course, human rights protection in the UK did not start with the HRA35 and it may be legitimate to develop protection on the basis of the common law rather than the HRA in areas where Strasbourg has yet to go. However, one should be cautious not to think that the two sources produce identical results in terms of human rights protection and that common law could replace the HRA without any detrimental impact on domestic human rights protection.

12It is in this context that the Johnson government decided to set up the IHRAR. After 20 years of operation, such a decision was not problematic in itself. However, the manner in which the terms of reference seemed to be inviting negative comments was troubling. The questions raised about sections 2 to 4 of the HRA assumed that there was a problem with the operation of the Act, while the potential benefits of the HRA were not included in the review. All questions were oriented on the separation of powers issue. However, the Independent Review did not necessarily reach the conclusion the government expected.

The Independent Review on the HRA and the government’s consultation

13Following extensive submission of evidence (the vast majority of which was in favour of maintaining the status quo), dialogue with academics, judges, and civil society, the independent panel produced a 580-page report, made public in December 2021. The content of the report revealed the government’s assumptions to be wrong. However, on the very day of the report’s publication, the government started a consultation, the purpose of which was to welcome proposals for a “modern Bill of Rights”, still based on the false assumption that the HRA is inherently flawed and in need of amendment.

The status quo recommendation of the IHRAR

  • 36 As recognised by the report, legislative amendment of the HRA would not “resolve the posi (...)
  • 37 Since the HRA came into force, it has only happened once. Thus, it cannot be co (...)

14The questions that the IHRAR had to cover seemed to be inviting the panel to recommend fundamental changes to key sections of the HRA, mainly sections 2, 3 and 4. However, the report’s conclusions and recommendations were quite modest. On several points, there was a convergence between the report and the government’s approach, but when it came to the key issue of separation of powers in relation to sections 2 to 4 of the Act, the government could not find support for its position in the report. Indeed, the report concluded that no substantial amendments should be made to the HRA, so as to avoid creating a gap between domestic courts and the ECtHR in the implementation and protection of Convention rights, even if the report recommended some adjustments. For instance, the report recommended pursuing the dialogue with the ECtHR on certain contentious issues, such as the temporal and extra-territorial scope of the Convention. The expansion of the Convention’s application was said to be “troubling” and it was recommended that the matter should be taken further on an inter-governmental level. However, this could not have a direct and immediate impact on the HRA.36 Recommendations were also made on technical, peripheral issues such as the use of section 10 of the HRA, to ensure that it could not be used to amend the HRA itself and in order to improve parliamentary scrutiny of these orders. It was also recommended to amend section 14 of the Act to allow UK courts to issue suspended quashing orders, where a challenge to a designated derogation order succeeds.37

15Moving on to the main issues, namely amendments to section 2, 3 and 4 of the Act: although there were good reasons not to propose any change to section 2, in light of the evolution of the UK courts’ position towards the duty to take into account ECtHR case law, the report recommended an amendment. However, it is worth stressing that the report rejected proposals such as repealing section 2 or changing the verb from “must” take into account to “may” take into account so as to facilitate departure from Strasbourg case law. What the report recommended was to clarify the priority of rights protection by giving statutory effect to the position developed in the Supreme Court case law of Osborn v Parole Board or Kennedy v Charity Commission applying UK domestic statute and common law first, and – if proceeding to interpret a Convention right – before taking into account ECtHR case law.

  • 38 ECtHR, dec., Lee v the UK, December 7, 2021.
  • 39 Lee (respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern (...)
  • 40 ECtHR, dec., Lee v the UK, op. cit., § 74.

16This recommendation, if implemented, could become problematic in light of the ECtHR decision, Lee v the UK.38 In this decision, which is the continuation at the European level of the Ashers Baking Ltd case,39 the ECtHR, by a majority, ruled the application inadmissible for non-exhaustion of domestic remedies as the applicant failed to rely expressly on the HRA on the domestic level. The ECtHR stated that “by relying solely on domestic law, the applicant deprived domestic courts of the opportunity to address this important issue themselves [related to discrimination] before he lodged his application with the court”.40 The court added, and it is worth quoting extensively, that

  • 41 Ibid., § 77.

in view of the fact that the HRA 1998 gives litigants the right to invoke their Convention rights directly before the domestic courts, and obliges those courts, so far as it is possible to do so, to read and interpret both primary and subordinate legislation in a way which is compatible with those rights, the Court does not consider that the applicant has provided a satisfactory explanation for not advancing his Convention rights. […] In choosing not to rely on his Convention rights, the applicant deprived the domestic courts of the opportunity to consider both the applicability of Article 14 to his case and the substantive merits of the convention complaints on which he now relies. Instead, he now invites the court to usurp the role of the domestic courts by addressing these issues itself.41

17One could not dream of a stronger support for the HRA. The ECtHR imposes on applicants an obligation to rely on the HRA, which in turn constrains domestic courts in the choice of sources they use to rule on a case, at least if they want to benefit from the full effect of the subsidiarity principle, now enshrined in the preamble of the Convention thanks to the UK government’s efforts. Indeed, the ECtHR is willing to be more deferential to domestic courts if they rely on its methodology and case law. Therefore, the idea, propounded by the report, that placing the HRA in a secondary position in favour of giving priority to domestic sources would give effect to the principle of subsidiarity seems to be contradicted by the ECtHR itself.

  • 42 [2021] UKSC 56.
  • 43 See also R (on the application of AB) v Secretary of State for Justice [2021] U (...)

18If we put aside the recommendation to amend section 2, the IHRAR concluded that it was wrong to portray the HRA as having prompted the judiciary to act in an “unconstitutional” manner to the detriment of Parliament’s sovereignty or of the deference due to the Executive. The majority of the panel stressed that “UK Courts […] have shown proper consideration for their role, and the respective roles of Parliament and government. They have done so consistently over the first 20 years of the HRA. […] Overall, however, the UK Courts have developed and applied a properly principled approach in this area, guided by judicial restraint”. We have a recent example of this restraint in the case of R (on the application of Elan-Cane) v Secretary of State for the Home Department.42 In 2021, the courts were cautious not to expand the scope of Convention rights on their own volition if there is no clear guidance from Strasbourg.43

  • 44 In particular since the government did not introduce legislation in Parliament to have th (...)
  • 45 IHRAR, Full Report, op. cit., 207.
  • 46 Ibid., 212.
  • 47 Since 2000, DOIs have only been used in 43 cases, 10 being overturned on appeal, and (...)
  • 48 IHRAR, Full Report, op. cit., 221.
  • 49 Ibid., 224-225.
  • 50 Ibid.

19The panel concluded that the judiciary’s use of sections 3 and 4 of the Act did not lead to an undue attack on parliamentary supremacy. Indeed, the panel stressed that the HRA should not be viewed “through the prism of a few high-profile cases”, which were the exception rather than the rule.44 The panel, for instance, mentioned that, since guidance as to how section 3 should be applied was given in the case of Gaidan v Godin-Mendoza, it was “difficult to identify cases where UK courts have strayed beyond Parliament’s intention in enacting section 3”.45 The panel concluded that there was little to no evidence to support the position that UK courts are misusing section 3.46 As for section 4, the panel stressed the judiciary’s caution in the use of DOIs47 and the fact that courts have exercised their power as Parliament intended, meaning as a last resort.48 Overall, the panel recalled that the shift in the constitutional balance “did not, however, weaken Parliament” and that there was no evidence “to suggest that Parliament has considered the UK courts to have erred in reaching their decisions either on section 3 interpretations or section 4 declarations”.49 Thus, the report concluded: “Suggestions that the HRA has upset the constitutional balance are ill-founded”.50

  • 51 Ibid., 234.
  • 52 Ibid., 238.

20In light of the evidence, no major amendment to these sections was recommended. For instance, repeal of section 3 was rejected, stressing that this proposal was “premised on a misconception, that the HRA has in some way removed from Parliament its primary role in rights protection. The HRA has patently not done so. It is careful to retain Parliamentary Sovereignty”.51 By the same token, limitation of the use of section 3 to cases where there was an ambiguity in the law was rejected, being considered in contradiction with Parliament’s intention when passing the HRA.52

21However, if facts are stubborn, it seems that the UK government is even more so. The manner in which the HRA was proved to have been used by the judiciary was ignored in favour of a fantasy, according to which the principle of separation of powers had been grossly upset by this legislation.

The government’s ignorance of reality

  • 53 Foreword by D. Raab, emphasis added, UK GOVERNMENT, Human Rights Act Reform: A Modern (...)

22On the very same day that the panel’s report was made public, the government started its own consultation with the intent, to quote Dominic Raab, to “revise the flaws we have identified, and replace the HRA with a modern Bill of Rights, one which reinforces our freedoms under the rule of law, but also provides a clearer demarcation of the separation of powers between the courts and Parliament”.53 The underlying idea remained the defence of parliamentary sovereignty from so-called judicial overreach whether it came from the ECtHR or domestic judges. Thus, despite the IHRAR report’s opposite findings, the idea that the HRA was responsible for the unconstitutional disruption of the separation of powers in the UK pervaded this consultation.

  • 54 Ibid., 56

23Although the government asserted its commitment to retaining the substantive rights currently protected under the HRA,54 and that certain distinctively British rights would be strengthened such as the right to trial by jury and freedom of expression, one could not help but be worried by the end result of this consultation. Of course, we could think that this is much ado about nothing, that this is political gesticulation for the purpose of internal party politics, but the government’s fixation on the “nuisance” that human rights represent may have a detrimental effect on society.

  • 55 Ibid., 5.
  • 56 Ibid., 67. See also comments by Lord Reed in R (on the application of Elan-Cane), op. cit(...)

24For instance, the government denounced what it called the “expansion and inflation of rights without proper democratic oversight”,55 through the use of evolutive interpretation of the Convention and positive obligations (as if positive obligations did not exist in law outside the ECHR). The latter element is accused of rendering public authorities’ tasks complex and uncertain, and the government invited proposals to address the burden that positive obligations are said to represent for public services.56

  • 57 Ibid., 5.
  • 58 Ibid., 84. In that regard, the government proposes to introduce a permission stage in rel (...)

25The government also wanted to strike what it considered as the proper balance between rights and responsibilities, as well as between rights and the public interest. With that in mind, the government criticised the “rights culture” and was seeking to restore what it presented as “common sense” in the application of human rights in the UK.57 It criticised what it considered as abusive human rights claims by undeserving claimants,58 proportionality control and the manner in which human rights prevent the Executive from pursuing certain aims, such as deporting illegal migrants or foreign national offenders.

  • 59 Ibid., 57.
  • 60 Ibid., 96.
  • 61 Idem.

26More specifically, when it comes to section 2, the government insisted, similarly to the Independent Review’s report, on the need to “strengthen our common law traditions”, but also on the need to “reduce reliance on Strasbourg case law and reinforce the supremacy of the UK Supreme Court”.59 In order to limit what it called the “incremental expansion of rights driven by the Strasbourg Court”, the government proposed that courts consider that it is not necessary to construe a “right […] in this Bill of Rights as having the same meaning as a corresponding right in the ECHR”.60 It also invited proposals to amend the HRA, so as to bring courts to rely on non-European material, the purpose being the lowering of the importance of ECHR case law, contrary to what the panel recommended. Finally, the proposal clarified that a court is not required to follow or apply any judgment of the ECtHR,61 which is in contradiction with article 46 at least when it comes to cases in which the UK is the respondent state. It must be stressed that under section 2 of the HRA, courts can already do all of these things. Still, the manner in which these proposals were presented reveals the government’s bad faith regarding the actual operation of the HRA.

  • 62 Ibid., 68.

27When it comes to section 3, disregard for the report’s conclusion was blatant when the consultation paper stated that “our view is that the Act […] has moved too far towards judicial amendment of legislation […]”.62 The government invited proposals on the repeal of section 3 or on it being replaced with a provision strictly limiting the judges’ interpretative powers to ambiguous provisions only and with the instruction that the interpretation be done in a manner consistent with the wording and overriding purpose of the legislation.

28As to section 4, the government invited proposals as to whether it could be the only remedy in relation to secondary legislation, so as to prevent secondary legislation from being declared invalid, while the panel rejected the idea that the HRA should be amended to prevent subordinate legislation from being quashed. This proposal would limit the judiciary’s control of administrative action in the area of human rights, with no particular justification but the government’s refusal to accept the constitutional function of the courts.

29The government thus sought views on various ideas which, if implemented, would upset the delicate balance that was reached by the HRA and would undermine domestic protection of human rights.

  • 63 Ibid., 81.
  • 64 Idem.

30Despite the UK government’s assertions that it remained committed to its international obligations, a future Act repealing the HRA might place it on a collision course with Strasbourg on several issues. Any amendment of section 3 in a way that would make it more complex to interpret the law in accordance with Convention rights, as interpreted by the ECtHR, might lead to an increase in the number of applications brought to the ECtHR. As to other proposals, the government seemed to ignore that Strasbourg case law did not prevent it from reaching certain goals. For example, regarding the fight against illegal immigration, ECtHR case law is far from being as protective of individuals as the government wanted the reader to believe. On the contrary, the ECtHR is often criticised as being insufficiently protective of migrants for the sake of States’ right to regulate the entry, stay and deportation of foreign nationals on their territory. In the same manner, the recommendation that, in applying the proportionality test, greater weight should be given to legislation enacted by Parliament63 does not per se run counter to the ECtHR case law, which recognises in many areas the better position of national authorities to decide how to balance rights and interests. However, a proposal which would seek to prevent a judge from performing a proportionality review of public authorities’ actions would not be accepted by Strasbourg. For instance, when it comes to deportation, a proposal such as the one mentioned that “it could be clarified that certain rights, such as the right to family life, cannot prevent the deportation of a certain categories of individuals, for example offenders sentenced to a term of imprisonment, or persons involved in terrorist-related activity”64 ignores the duty for a judge to make an in concreto assessment of the proportionality of the interference, in light of all the circumstances of the case. In addition, the criticism made against the development of positive obligations or the extra-territorial effect of the Convention seemed to announce irreconcilable positions with Strasbourg, unless the ECtHR was ready to amend its case law to lower the level of protection it offered.

  • 65 Ibid., 7.

31Last but not least, the idea of setting up a “democratic shield”65 to assert that, faced with an adverse ruling from the ECtHR, Parliament has the final say, is difficult to reconcile with article 46 of the Convention, which requires contracting parties to abide by the final judgment of the ECtHR in any case to which they are parties. This would bring the UK closer to other states such as Poland (or Russia when it was still a contracting party to the Convention) who consider that they can pick and choose cases by which they abide, and that they can decide to ignore ECtHR rulings they deem incompatible with their Constitution.

Conclusion

  • 66 By population, the UK has the fewest applications of all States, with five per million (as (...)

32In conclusion, we do not know what the future holds. Following the results of its consultation, the then Justice Secretary, Dominic Raab, presented a Bill of Rights to Parliament, implementing several of the government’s proposals, in particular in relation to reducing the powers of the judiciary and the influence of Strasbourg case law. However, political events led this bill to be put aside and therefore it is not possible to foresee what the end result would have been. However, if a future government decided to push this logic to its irrational end, the HRA could be replaced with a Bill of Rights that might lessen the protection of rights at the domestic level. This would in turn create an incitement for individuals to seek in Strasbourg what they may no longer find at home, the very opposite of what the HRA has managed to achieve, namely bringing rights back home. The HRA has fulfilled this aim, in the sense that human rights claims are now debated, first domestically and then, in a limited number of cases, at the European level. The years following the entry into force of the HRA saw a sharp decrease in the number of applications brought to the ECtHR, deemed admissible and ending with a finding of a breach of the Convention. For instance, in 2020, the Court examined 284 applications against the UK, 280 of which were declared inadmissible or struck out of the list of applications. Only four judgments on four applications were delivered, finding violations in two cases. In contrast, in 2020, the ECtHR examined 538 applications against France, 478 were declared inadmissible or struck out of the list, 16 judgments on 60 applications were delivered, with at least one violation of the Convention found in ten judgments.66

33If applications and findings of violations were to increase, it would certainly further the deterioration of the relations between London and Strasbourg, the latter being blamed for encroaching on the States’ sovereignty and their margin of appreciation. In such a situation, it would not be impossible to see the idea of withdrawing from the ECHR resurface. However, in the current climate, the UK government might hesitate before taking the risk of being compared to Russia. Every cloud has a silver lining…

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Bibliographie

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CONSERVATIVE PARTY, Strong Leadership, A Clear Economic Plan, A Brighter, More Secure Future, 2015.

CONSERVATIVE PARTY, Get Brexit Done – Unleash Britain’s Potential, 2019.

Independent Human Rights Act Review (IHRAR), The Independent Human Rights Act Review: Full Report, Her Majesty’s Stationery Office, 2021, <https://assets.publishing.service.gov.uk/media/61b8531c8fa8f5037778c3ae/ihrar-final-report.pdf>.

LORD JUSTICE ELIAS, “Are judges becoming too political”, Cambridge Journal of International and comparative Law, n° 3, 2014, 1-26.

UK GOVERNMENT, Human Rights Act Reform: A Modern Bill Of Rights, A Consultation to Reform the Human Rights Act 1998, 2022.

Case law

Case law (UK Supreme Court)

A v BBC (Scotland) [2014] UKSC 52

Chester v Secretary of State for Justice [2013] UKSC 63

In the matter of an application by Geraldine Finucane for Judicial Review [2019] UKSC 7

In the matter of an application by Hugh Jordan for Judicial Review [2019] UKSC 9

Kennedy v The Charity Commission [2014] UKSC 20

Lee (respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) [2018] UKSC 49

Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47

McDonald v McDonald [2016] UKSC 28

McLaughlin [2018] UKSC 38

Osborne v the Parole Board [2013] UKSC 61

Poshteh v Royal Borough of Kensington [2017] UKSC 33

R (Haney, Kaiyam and Massey) v Secretary of State for Justice [2014] UKSC 66

R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28

R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56

R (on the application of Steinfeld and Keidan) v Secretary of State for International development [2018] UKSC 32

R (Robinson) v Governor of HMP Whatton and Secretary of State for Justice [2014] UKSC 66

R (UNISON) v Lord Chancelor [2017] UKSC 51

R v Horncastle [2009] UKSC 14

Case law (UK House of Lords)

Bellinger v Bellinger [2003] UKHL 21

Ghaidan v Godin-Mendoza [2004] UKHL 30

R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23

R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26

R (Ullah) v Special Adjudicator [2004] UKHL 26

R v Lyons (No.3) [2002] UKHL 44

R v Spear [2002] UKHL 31

Secretary of State for the Home Department v AF [2009] UKHL 28

Case law (UK Upper Tribunal)

AR v Secretary of State for Work and Pensions [2020] UKUT 165 (AAC)

Case law (Court of Appeal (England and Wales))

R v Newell; R v McLoughlin [2014] EWCA Crim 188

R v Abdurahman [2019] EWCA Crim 2239

Case law (High Court (England and Wales))

Hafeez v Government of the USA [2020] EWHC 155 (Admin)

Case law (European Court of Human Rights)

ECtHR, dec., Lee v the UK, December 7, 2021

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Notes

1 This paper is based on a communication presented in March 2022. It is up to date with the political and legal developments as of September 2022. It does not study in detail the Bill of Rights introduced in Parliament by D. Raab, in June 2022, as the Bill was put aside by L. Truss in September 2022, nor subsequent developments under the Labour government.

2 The HRA is often portrayed as non-British, importing foreign law, elaborated by foreign judges, in the domestic legal system (hence the will to replace it with a so-called British Bill of Rights). In addition, successive governments take exception with the case law of the ECtHR on different issues, such as immigration. The Court is blamed regularly as the source of their difficulty in dealing with illegal immigration. However, the case law of the ECtHR is far from being as protective of migrants as alleged, for political reasons, by successive governments. The Labour Party has sometimes also taken exception to the operation of the Act (e.g. criticisms raised regarding the use of section 2), but their support for the HRA and the ECtHR remains strong, even if ambiguous at times.

3 Conservative Party, Invitation to Join the Government of Britain, 2010, 79.

4 See Commission on a Bill of Rights, A UK Bill of Rights, The Choice Before Us, December 2012.

5 Conservative Party manifesto, Strong Leadership, A Clear Economic Plan, A Brighter, More Secure Future, 2015, 58.

6 S.2 of the HRA: Interpretation of Convention rights: (1)A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any– (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

7 Conservative Party, Get Brexit Done – Unleash Britain’s Potential, 2019, 48.

8 See Richard Ekins, submission to the Independent Review on the Human Rights Act, § 49, and reference to Lord Justice Elias, “Are judges becoming too political”, Cambridge Journal of International and Comparative Law, n° 3, 2014, 1-26.

9 See in section 6 of GFA: The British government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

10 Article 2(1): The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

11 See, for instance, regarding the “legacy cases”: In the matter of an application by Geraldine Finucane for Judicial Review [2019] UKSC 7; In the matter of an application by Hugh Jordan for Judicial Review [2019] UKSC 9.

12 Maggie Beirne, “A Response to the Lecture by Shami Chakrabarti: Human Rights or Citizen’s Privileges: The Great Bill of Rights Swindle”, The Political Quarterly, 83(3), 2012, 466 and sq, 467: “Devolution has built into the various constitutional arrangements explicit reference to the European Convention... Tampering with the Convention, or its outworkings in the form of the Human Rights Act, risks unravelling hard won political and constitutional battles in devolved territories”.

13 Ghaidan v Godin-Mendoza [2004] UKHL 30, see Lord Nicholls, § 26: “Section 3 is a key section in the Human Rights Act 1998. It is one of the primary means by which Convention rights are brought into the law of this country. Parliament has decreed that all legislation, existing and future, shall be interpreted in a particular way. All legislation must be read and given effect to in a way which is compatible with the Convention rights 'so far as it is possible to do so'. This is the intention of Parliament, expressed in section 3, and the courts must give effect to this intention”.

14 Ibid., see Lord Nicholls § 29-30: “[…] It is now generally accepted that the application of section 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, section 3 may nonetheless require the legislation to be given a different meaning. […] From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3”.

15 S.3 of the HRA reads as follows: (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section– (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

16 Bellinger v Bellinger [2003] UKHL 21.

17 See R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56. 

18 See for instance Bellinger v Bellinger, op. cit., Lord Nicholls § 36-38.

19 Gilham v Ministry of Justice [2019] UKSC 44, per Baroness Hale, at § 39: “In Ghaidan v Godin-Mendoza it was also established that what is ‘possible’ goes well beyond the normal canons of literal and purposive statutory construction”.

20 See Ghaidan v Godin-Mendoza, op. cit., Lord Nicholls, §33, and Lord Rodger, § 117 and § 120. For a recent example, AR v Secretary of State for Work and Pensions [2020] UKUT 165 (AAC), § 31: “In the field of social security law, it is a matter for Parliament to decide who receives benefits and who does not. This Tribunal will ensure the fair and proper allocation of benefits within the law but will not grant socio-economic benefits that Parliament has decided to withhold. We have been directed to nothing in the legislative scheme which would persuade us that, by adopting the term ‘spouse’ in the 1999 Act, Parliament intended to grant bereavement benefit to those not validly married as opposed to intending to remedy historic discrimination between men and women”.

21 Besides Bellinger v Bellinger see, for instance, AR v Secretary of State for Work and Pensions, op. cit.; Steer v Stormsure Ltd [2020] 12 WLUK 427; McDonald v McDonald [2016] UKSC 28; Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; R (on the application of Elan-Cane) v Secretary of State for the Home Department, op. cit. 

22 S. 4 of the HRA reads as follows: Declaration of incompatibility. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied– (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. (5) In this section “court” means– (a) the Supreme Court; (b) the Judicial Committee of the Privy Council; (c) the Court Martial Appeal Court; (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal. (f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Chancellor of the High Court or a puisne judge of the High Court. (6) A declaration under this section (“a declaration of incompatibility”) – (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.

23 See Lady Hale in McLaughlin [2018] UKSC 38, § 43: “[…] A declaration of incompatibility does not change the law: it is then for the relevant legislature to decide whether or how it should be changed”. According to the government, until 2020 there have been 43 DOIs, with only one being resisted, regarding the prisoner’s right to vote issue.

24 15 declarations made since 2013, out of a total of 43 since the HRA was implemented.

25 See for instance Chester v Secretary of State for Justice [2013] UKSC 63.

26 R (on the application of Steinfeld and Keidan) v Secretary of State for International development [2018] UKSC 32.

27 See R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23; R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46; R (Ullah) v Special Adjudicator [2004] UKHL 26.

28 Secretary of State for the Home Department v AF [2009] UKHL 28, § 98.

29 See for instance R v Spear [2002] UKHL 31.

30 See Lord Slynn in Alconbury, op. cit., § 26: “[…] Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights”.

31 See R v Lyons (No.3) [2002] UKHL 44, Lord Hoffmann, § 46: if “an English court considers that the ECtHR has misunderstood or been misinformed about some aspects of English law, it may wish to give a judgment which invites the ECtHR to reconsider the question […] There is room for dialogue on such matters”; see also R v Horncastle [2009] UKSC 14.

32 See for instance R v Newell; R v McLoughlin [2014] EWCA Crim 188; R (Haney, Kaiyam and Massey) v Secretary of State for Justice, R (Robinson) v Governor of HMP Whatton and Secretary of State for Justice [2014] UKSC 66 ; Poshteh v Royal Borough of Kensington [2017] UKSC 33; R v Abdurahman [2019] EWCA Crim 2239; Hafeez v Government of the USA [2020] EWHC 155 (Admin).

33 For an exception, see McLoughlin, op. cit.

34 Although this could already be seen in early case law (see R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, Lord Cooke § 30: “It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. […]”), it has increased in the past 10 years. See Osborne v the Parole Board [2013] UKSC 61, § 56: “[…] The Convention cannot be treated as if it were Moses and the prophets […]”; § 57: “[…] The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute […]” ; § 63: “[…] the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law […]”; Kennedy v The Charity Commission [2014] UKSC 20; A v BBC (Scotland) [2014] UKSC 52; R (UNISON) v Lord Chancelor [2017] UKSC 51.

35 See Lord Toulson in Kennedy v The Charity Commission, op. cit., § 133.

36 As recognised by the report, legislative amendment of the HRA would not “resolve the position under the Convention, which would remain binding on the UK internationally”, IHRAR, The Independent Human Rights Act Review: Full Report, Her Majesty’s Stationery Office, 2021, 337, <https://assets.publishing.service.gov.uk/media/61b8531c8fa8f5037778c3ae/ihrar-final-report.pdf>.

37 Since the HRA came into force, it has only happened once. Thus, it cannot be considered as engaging with the core of the Act.

38 ECtHR, dec., Lee v the UK, December 7, 2021.

39 Lee (respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) [2018] UKSC 49.

40 ECtHR, dec., Lee v the UK, op. cit., § 74.

41 Ibid., § 77.

42 [2021] UKSC 56.

43 See also R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28, § 59-60.

44 In particular since the government did not introduce legislation in Parliament to have these cases reversed.

45 IHRAR, Full Report, op. cit., 207.

46 Ibid., 212.

47 Since 2000, DOIs have only been used in 43 cases, 10 being overturned on appeal, and in three cases the Court has declined to issue a DoI in respect of incompatible provisions.

48 IHRAR, Full Report, op. cit., 221.

49 Ibid., 224-225.

50 Ibid.

51 Ibid., 234.

52 Ibid., 238.

53 Foreword by D. Raab, emphasis added, UK GOVERNMENT, Human Rights Act Reform: A Modern Bill Of Rights, A Consultation to Reform the Human Rights Act 1998, 2022.

54 Ibid., 56

55 Ibid., 5.

56 Ibid., 67. See also comments by Lord Reed in R (on the application of Elan-Cane), op. cit., on positive obligations, § 55: “[…] the imposition of such obligations requires contracting states to modify their laws and practices, and possibly (as in the present case) to incur public expenditure, in order to advance social policies which they may not wholly support, or which they may not regard as priorities, without the imposition of the obligation being supported by any democratic mandate or accountability. While not a conclusive objection, those characteristics of positive obligations indicate the importance of exercising caution before they are imposed […]”.

57 Ibid., 5.

58 Ibid., 84. In that regard, the government proposes to introduce a permission stage in relation to human rights claims, to strengthen the courts’ discretion when granting remedies for human rights breaches and the possibility for courts to consider the claimant’s conduct in deciding whether or not to award a remedy.

59 Ibid., 57.

60 Ibid., 96.

61 Idem.

62 Ibid., 68.

63 Ibid., 81.

64 Idem.

65 Ibid., 7.

66 By population, the UK has the fewest applications of all States, with five per million (as compared to 53 per million for all member States combined). See Responding to Human Rights judgments, Report to the Joint Committee on Human Rights on the government’s response to human rights judgments 2019-2020, Presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, December 2020.

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Peggy Ducoulombier, « The Human Rights Act 1998: No Future? »Revue LISA/LISA e-journal [En ligne], vol.23-n°60 | 2025, mis en ligne le 01 décembre 2025, consulté le 16 décembre 2025. URL : http://journals.openedition.org/lisa/17594 ; DOI : https://doi.org/10.4000/157hz

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Peggy Ducoulombier



Peggy Ducoulombier is a Professor in public law at the University of Strasbourg. She is a member of the research institute Carré de Malberg (UR 3399), and an honorary lecturer at the University of Aberdeen. She has published extensively on the question of human rights law, and on the European Convention on Human Rights.

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