The Government’s Independent Review of the Human Rights Act Contents

4The separation of powers: sections 3 and 4 Human Rights Act

Introduction

74.This chapter focusses on the impact of the HRA on the relationship between the courts, Government and Parliament, and in particular on sections 3 and 4 HRA. These provisions most clearly reflect the way in which the HRA was designed to achieve a balance between the protection of individual rights and respect for the constitutional principle of the sovereignty of Parliament. Before considering the operation of sections 3 and 4 HRA and their impact, however, it is necessary to recognise the constitutional context for the HRA.

Box 5: IHRAR terms of reference: The impact of the HRA on the relationship between the judiciary, the executive and the legislature

The judiciary, the executive and the legislature each have important roles in protecting human rights in the UK. The Review should consider the way the HRA balances those roles, including whether the current approach risks “over-judicialising” public administration and draws domestic courts unduly into questions of policy.

The Review should consider the following questions in relation to this theme:

b)Should any change be made to the framework established by sections 3 and 4 of the HRA? In particular:

  • Are there instances where, as a consequence of domestic courts and tribunals seeking to read and give effect to legislation compatibly with the Convention rights (as required by section 3), legislation has been interpreted in a manner inconsistent with the intention of the UK Parliament in enacting it? If yes, should section 3 be amended (or repealed)?
  • If section 3 should be amended or repealed, should that change be applied to interpretation of legislation enacted before the amendment/repeal takes effect? If yes, what should be done about previous section 3 interpretations adopted by the courts?
  • Should declarations of incompatibility (under section 4) be considered as part of the initial process of interpretation rather than as a matter of last resort, so as to enhance the role of Parliament in determining how any incompatibility should be addressed?

c)Under the current framework, how have courts and tribunals dealt with provisions of subordinate legislation that are incompatible with the HRA Convention rights? Is any change required?

Source: IHRAR, Independent Human Rights Act Review: Call for evidence

75.The IHRAR call for evidence also invited “any general views on how the roles of the courts, Government and Parliament are balanced in the operation of the HRA, including whether courts have been drawn unduly into matters of policy.”

Constitutional context

76.An examination of the relationship between the courts, Government and Parliament touches upon three core elements of the unwritten constitution of the United Kingdom: the separation of powers, the sovereignty of Parliament and the rule of law.

The separation of powers

77.The concept of the separation of powers refers to the division of the functions of government into different branches, with each branch operating separately from and respecting the others. The most widely recognised model of the separation of powers is based on there being three functions of government, each of which is exercised by a distinct branch of government, which exercises checks on the other branches to ensure balance and that none of them has too great a power. The three functions are:

78.In the UK constitution there is not such a clear tripartite distinction between these branches, with equal checks and balances, as exists under some other constitutions.59 In particular, the Westminster model, whereby the Government is made up of members of Parliament, involves a mixing of the executive and the legislature.60 As a consequence, the government of the day has a significant ability to control the legislative function.

Parliamentary sovereignty

79.Parliamentary sovereignty is often seen as the cornerstone of the UK constitution. It was defined by Lord Bingham, in his seminal book ‘The Rule of Law’, as meaning “that Parliament has, in the United Kingdom, no legislative superior”.61 A more traditional view of Parliamentary sovereignty is that expressed by the Victorian jurist A.V. Dicey:

“The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having a right to override or set aside the law of Parliament”.62

The rule of law

80.The rule of law is a further fundamental principle of the UK constitution and is recognised as such in the Constitutional Reform Act 2005. Margaret Thatcher described it as “the very bedrock of our civilization.”63 The preamble to the Universal Declaration of Human Rights describes it as essential to the protection of human rights.

81.The importance of the rule of law to any functioning democracy is uncontroversial, but its precise meaning is less easy to define. Lord Bingham, in his book on the subject, explained that:

“The core of the existing principle is … that all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”64

82.But can the rule of law be restricted to requiring the courts to administer whatever laws are passed by a properly elected Parliament–no matter what impact they might have on the rights of individuals? Does the rule of law require that “laws publicly made” must have any particular quality or content? Lord Bingham believed so, considering that a further principle embraced within the rule of law is that “the law must afford adequate protection of fundamental human rights.”65

83.This conception of the rule of law recognises that the law and the courts that apply it have a vital role in protecting human rights and avoiding the tyranny of the majority. However, it comes into conflict with a belief in unfettered Parliamentary sovereignty, as it proposes that there are some limits on what Parliament can do.

84.Despite the limit it places on the power of the judiciary, and its potential to conflict with the rule of law, the higher courts have frequently upheld a traditional notion of Parliamentary sovereignty and the related separation of powers between them and the legislature. For example, Lord Diplock in Duport Steels v Sirs noted that:

“the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them … [T]he role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it … Under our constitution it is Parliament’s opinion on these matters that is paramount”.66

Constitutional context for the introduction of the Human Rights Act

85.The UK became one of the first signatories to the ECHR in 1951. In the decades following the signing of the Convention there was much debate over the introduction of a Bill of Rights into domestic law, whether based upon incorporation of the Convention or otherwise. In particular, there was concern over the impact such an instrument would have on the traditional view of the separation of powers and Parliamentary sovereignty expressed by Lord Diplock. For many who opposed the formal recognition of fundamental rights the concern was the prospect of granting the courts the ability to deny the will of Parliament where fundamental rights were in play.

86.For those on the other side of the debate, it was questioned whether there could truly be any guarantee of fundamental rights if Parliament retained the ability to overrule any law protecting them at will. For some, proper respect for the rule of law required human rights to be given a particular, protected status within the constitution.

87.The HRA represented the result of Parliament’s efforts to achieve a compromise position between these two opposing views. As then Home Secretary Jack Straw put it during the passage of the Human Rights Bill through Parliament:

“One of the [Act’s] many strengths is that it promotes human rights while maintaining the sovereignty of Parliament and the separation of powers which underpins our constitutional arrangements.”67

88.Nevertheless, each of the central provisions of the Act has some impact on the balance of power between the different branches of government. For example, by requiring public authorities to act compatibly with Convention rights (section 6 HRA - see Chapter 11 below) and granting individuals the right to bring human rights claims in domestic courts (section 7 HRA), the HRA increased the role of the judiciary in reviewing the actions of the executive for compliance with accepted human rights standards. The judiciary was itself subject to new requirements as it was not immune from the obligation to act compatibly with the Convention under section 6 HRA.

89.Sections 3 and 4 of the HRA most directly affect the balance of power between the judiciary and the legislature. As Lady Hale put it in her oral evidence to us, “those are the two crucial sections that define the relationship between the courts and Parliament.”68 However, given the powerful role played by the Government of the day within Parliament, sections 3 and 4 inevitably also have implications for the power of the Executive.

Section 3 Human Rights Act–statutory interpretation

Box 6: Section 3 HRA: Interpretation of legislation

Interpretation of legislation.

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

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.

Source: Human Rights Act 1998, Section 3

90.Section 3 HRA concerns the interpretation of legislation. This includes both primary legislation, i.e. statutes/Acts of Parliament, and subordinate or secondary legislation, i.e. statutory instruments.69

91.As discussed in Chapter 2, prior to the HRA coming into force the ECHR was treated by the courts like any other treaty which the UK had ratified. Thus, the courts were permitted (but not bound) to refer to the ECHR to assist in their interpretation of legislation where the meaning of the statutory words was ambiguous. Where there was no ambiguity, however, statutes and statutory instruments had to be read and given effect even if they were in conflict with the ECHR.70 Section 3 HRA alters this position somewhat, requiring all primary and secondary legislation to be read and given effect in a way which is compatible with the Convention rights–so far as it is possible to do so. But where that is not possible, Acts of Parliament have to be followed even if they conflict with the ECHR.

The new interpretative obligation

92.The nature of the new interpretative obligation under section 3 HRA was described by Lord Steyn in 2002:

“ … the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights.”71

93.However, while the obligation to interpret legislation compatibly with the Convention requires the court to go further than resolving ambiguity, it is not unlimited. It is confined to those situations where “it is possible to do so.” The precise boundaries of where it is and is not possible to read legislation compatibly with the Convention rights have been explored in caselaw.

Box 7: The limits of the interpretive obligation under s3 HRA: Ghaidan v Godin-Mendoza

In the judgment of the House of Lords in Ghaidan v Godin-Mendoza Lord Steyn explained that:

“ … 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 … It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is “possible”, a court can modify the meaning, and hence the effect, of primary and secondary legislation.”72

94.It is this potential for the courts to ‘modify’ the meaning of legislation, identified in Godin-Mendoza, that has implications for the balance of power between the courts and Parliament, and that some see as a threat to Parliamentary sovereignty. However, since the HRA was introduced the courts have demonstrated their awareness of and respect for the separation of powers and the fact that their role remains one of interpretation and not legislative amendment. The House of Lords (in its judicial form) concluded that in passing section 3 HRA, Parliament could not have intended the courts to “adopt a meaning inconsistent with a fundamental feature of legislation”73 or “inconsistent with the scheme of the legislation or with its essential principles”.74 Only readings that “go with the grain of the legislation” are permitted under section 3 HRA.75 As Lady Hale confirmed: “There are limits to the interpretive obligation. You cannot completely twist the statutory meaning and the statutory purpose in order to produce a compatible interpretation.”76

Has section 3 undermined the separation of powers?

95.In respect of the impact of section 3 HRA on the balance of power between the judiciary and legislature, some of the witnesses before us suggested that little had changed as a result of its introduction. Dominic Grieve QC PC, former Attorney General, commented that: “the courts have been reading down legislation and reinterpreting it outside the ambit of the Human Rights Act and through common law principles for many decades, so I do not see that as some kind of constitutional novelty”;77 Lord Neuberger expressed agreement.78 Helen Mountfield QC also considered section 3 to be largely a continuation of previous practice rather than a seismic change:

“Courts have always applied the principle of legality. Parliament is presumed to expect the Executive to act in compliance with fundamental rights. It is only if Parliament says in express terms that you can do something that is against human rights that the courts will say that that is what Parliament wants to happen. That has always been the case. The Human Rights Act put that on the statute book … ”79

96.Other witnesses considered that section 3 HRA had made a substantial change to the court’s interpretative role. The Cambridge Centre for Public Law described section 3 as “quite radical” and stated that the HRA had “significantly altered the approach of the courts to the interpretation of the legislation of the UK Parliament and subordinate and secondary legislation”. Notably, however, their submission concluded that “this has not resulted in a radical transfer of power from the legislature to the judiciary”.80

97.This is not a universal view. The breadth of the power of the courts to interpret legislation, particularly in disputes concerning the balancing of individual rights against other societal interests and concerns, has given rise to concerns of ‘judicial activism’ and illegitimate ‘judicial overreach’ by individuals and groups including the Judicial Power Project. Professor Graham Gee of the University of Sheffield voiced these concerns in his evidence to us, suggesting that section 3 HRA could be said to be “warping the separation of powers … by obscuring the distinction between the judicial and the legislative function”.81

98.Lady Hale accepted that the incorporation of the ECHR into domestic law has resulted in the courts having to make decisions about controversial issues that would be better addressed by Parliament. However, she did not consider that this was a result of judicial activism but rather because “if the courts are presented with a case that has been properly brought by somebody with a proper interest in the case, the courts have no choice but to resolve it according to law.”82

99.Insofar as there is a concern that the courts might be using section 3 HRA to go beyond what Parliament intended when legislating, it is not one that we share.

100.Firstly, the strong interpretive obligation contained in this section is imposed by Parliament itself. This was emphasised by Richard Hermer QC in his oral evidence to us: “All the courts have been doing is that which Parliament has told them to do, which is to apply the Act”.83 In the same vein, Helen Mountfield QC commented that “I just do not understand how it can be said that the Human Rights Act is a constraint on parliamentary sovereignty, because it is a vindication of it”.84 JUSTICE elaborated on this point further in their written submissions to us, stating that, “in our view the will of Parliament includes an intention that legislation should not be incompatible with Convention rights”.85 We agree with this view, and note that the intention of the Government that new Bills brought before Parliament should not be incompatible with human rights is made clear on their face. This is because section 19 HRA requires the Minister in charge of any Bill, before second reading, to publish a statement either confirming that the provisions of the Bill are compatible with Convention rights or making it clear that even though they cannot say the Bill is compatible, the Government nevertheless wishes Parliament to proceed with it. The Government has only made a s.19(1)(b) HRA statement that they are unable to say a Bill is compatible with Convention rights on very few occasions.

101.Secondly, the overwhelming majority of the evidence provided to us was positive about the use of section 3 HRA and did not consider it to raise any constitutional concerns. As the Law Society of England and Wales noted, “there are few notable examples of courts using broad section 3 interpretations”.86 Indeed, recent research found only 25 cases in the past 8 years in which section 3 had been used to interpret legislation compatibly with Convention rights.87 The only notable example provided to us of a relatively recent judgment raising concerns about the use of the HRA taking judges “outside their lane” (rather than one taken from the first few years after the HRA was introduced) was the case of Nicklinson from 2014–which concerned a challenge to the continued criminalisation of assisted suicide.88 And yet in Nicklinson, the Supreme Court concluded that an issue as sensitive as this was one for Parliament to resolve and firmly rejected the use of section 3 HRA to reinterpret section 2 of the Suicide Act 1961 so as to provide a defence of necessity. As the legal commentator Joshua Rozenburg QC summarised in his evidence to us: “[t]he most that the five judges in the majority felt they could do was to make a declaration of incompatibility, and three of the five decided they should not even do that. They left this up to Parliament”.89

102.Generally, the courts have shown themselves to be conscious of their role within the separation of powers. Helen Mountfield QC commented:

“I just do not agree that judges think they can or do in fact use Section 3 of the Human Rights Act as an instrument of practical law reform … I think the judges are incredibly—in fact sometimes overly—conscious of their constitutional role”.90

103.Thirdly, for those that remain concerned that the section 3 interpretative obligation may distort or undermine the intentions of Parliament, there remains the obvious backstop that there is nothing stopping Parliament legislating to resolve any such distortion. As Lady Hale put it:

“ … if Parliament does not like something that the courts have done in pursuance of the interpretation obligation in Section 3 of the Act, Parliament can always put it right, It can always say, “No, this is what the law is”, and you cannot interpret your way out of it, basically.”91

104.The Government has repeatedly confirmed its commitment to the ECHR, and the call for evidence issued by the IHRAR confirms that “the Review proceeds on the footing that the UK will remain a signatory to the Convention”. This means that any deficiency in the protection of human rights within the UK, including any deficiency resulting from amendment of the HRA, can be raised by an individual bringing a case before the European Court of Human Rights in Strasbourg. A diminution in the protection provided by the HRA could re-establish the position prior to the Human Rights Act, when people in the UK had to turn to an international court to defend their rights.

105.Section 3 HRA allows the judiciary to ensure that legislation is read compatibly with the Convention where possible. This supports the overarching intention of Parliament that legislation should not violate Convention rights. We have not been provided with any evidence to suggest that the courts are wrongly applying this power or that its use undermines or usurps the role of Parliament. The fact that it is hard to identify any cases in which Parliament has felt the need to correct a court’s interpretation of legislation under section 3 HRA strongly indicates that the courts are not using section 3 to trespass on to the territory of the legislature. There is no case for amending or repealing this provision.

When a Human Rights Act compatible interpretation is not possible

106.The limit on the section 3 interpretative obligation means that there will be occasions when the courts will identify a provision of legislation that cannot be read compatibly with the Convention. Where this is primary legislation, an Act of Parliament, the court has the option to turn to the HRA remedy that most plainly acknowledges the sovereignty of Parliament: the Declaration of Incompatibility. Before turning to that part of the HRA, however, we must consider the powers of the courts to deal with incompatible subordinate legislation—itself the subject of a question within the IHRAR terms of reference.

Incompatible legislation–secondary legislation

107.Statutory instruments (SIs), of which approximately 3,500 are made each year, are made by ministers (or other bodies) under powers delegated to them by Parliament.92 They receive less Parliamentary scrutiny than primary legislation; they cannot be amended by either House but either accepted or rejected. SIs subject to the affirmative procedure must be approved by both Houses of Parliament. The majority of SIs are made under the negative procedure, by which they come into effect as law unless either House rejects them within a fixed period after they have been laid. It is extremely rare for an SI to be rejected by either House of Parliament - whether laid under the affirmative or negative procedures.93

108.If a court is unable to use section 3 HRA to find a Convention compliant interpretation of a statutory instrument, the court has the power to strike down that secondary legislation. As noted by Dominic Grieve QC PC in his evidence to us, this is not a new power granted by the HRA.94 The High Court’s power to make orders quashing unlawful administrative decisions, which extends to quashing unlawful statutory instruments, is longstanding. What the HRA provides is an additional basis upon which the actions of the executive, including the making of secondary legislation, can be found to be unlawful–inconsistency with Convention rights.

109.The power to strike down secondary legislation that does not comply with Convention rights, and cannot be read compatibly, is consistent with the courts’ role of ensuring that secondary legislation made by ministers is not made outside the powers granted by Parliament. This is not a challenge to the role of Parliament or to the separation of powers but an example of the separation of powers in action. As Helen Mountfield QC explained:

“When Parliament gives the Executive power to put forward subordinate legislation with the idea of saving parliamentary time … and the subsequent rule of having a lesser degree of scrutiny, it does that on the assumption—the express assumption, again in the Human Rights Act—that those rules will comply with Convention rights and that, if they do not, they are not within the authority that Parliament gave the rule-maker to put the rules forward.”95

110.Richard Hermer QC added: “the idea that subordinate legislation will be reviewed to see if it does that which Parliament intended that it does is utterly unremarkable”.96 We agree. The scrutiny given to secondary or subordinate legislation as it passes through Parliament is limited, not least due to the volume of secondary legislation being passed and the limits of the Parliamentary timetable. A review of that legislation by the courts to make sure it complies with the general intention of Parliament that legislation be human rights compliant should be something to be welcomed not resented. While it might at times be inconvenient for the Government, that is an inevitable consequence of the rule of law. In that regard, Dominic Grieve QC PC commented that in his four years as Attorney General:

“Did I ever feel that government was being rendered ineffective by Human Rights Act claims? No, I did not …”97

He continued that whilst ministerial colleagues were sometimes “understandably irritated by some of the consequences of judgments, or, indeed, by the litigation surrounding them”, the question that had to be asked was “is this a price worth paying for trying to maintain the standards contained in the convention?” We believe that it is.

111.In any event, secondary legislation actually being quashed by the courts on the basis that it is not human rights compliant happens only very infrequently. In respect of a seven-year period between 2014 and 2020, recent research identified only 14 pieces of delegated legislation that were quashed on human rights grounds.98 As Professor Graham Gee noted to us: “This is obviously low in absolute numbers, and especially when you take into account the thousands of statutory instruments made each year.”99 These numbers suggest to us that even if the quashing of secondary legislation on human rights grounds were considered problematic rather than helpful, it does not amount to a significant impediment to the Executive.

112.The court’s power to quash secondary legislation that cannot be read compatibly with Convention rights respects Parliamentary sovereignty rather than challenging it. It is also an appropriate check on the power of the Executive, in accordance with the separation of powers and the rule of law.

Section 4 Human Rights Act–declarations of incompatibility

113.Section 3 HRA explicitly provides that the obligation to interpret legislation compatibly with the Convention “does not affect the validity, continuing operation or enforcement of any incompatible primary legislation”. The same limit on the effect of the interpretive obligation also applies, consequentially, to any incompatible secondary legislation “if primary legislation prevents removal of the incompatibility”.

114.The effect of this crucial provision was summarised by the then Lord Chancellor during Second Reading of the Human Rights Bill in the House of Lords: “This ensures that the courts are not empowered to strike down Acts of Parliament which they find to be incompatible with Convention rights.”100 When a Convention compatible interpretation of primary legislation is not possible, the courts must turn instead to section 4 HRA.

Box 8: Section 4 HRA: Declarations 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.

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.

Source: Human Rights Act 1998

Respecting Parliamentary sovereignty

115.Under section 4 HRA, where in the course of any legal proceedings a senior court determines that a provision of primary legislation is incompatible with the Convention (even after considering the s3 obligation to interpret legislation compatibly) the court may, not must, make a ‘declaration of incompatibility’.

116.Section 4(6) HRA embodies respect for the sovereignty of Parliament, making clear that a declaration of incompatibility has no legal effect on the statute in respect of which it is made. The legislation continues to operate as before.101 The declaration simply draws attention to the incompatibility in the legislation, alerting the public and Parliament (and this Committee in particular), and putting political pressure on the government of the day to change the law.102

117.In recognition of the constitutional significance of such a declaration, and fundamentally respecting Parliament, the power to make declarations of incompatibility is reserved to the senior courts - essentially the High Court and above.103 In addition, section 5 expressly requires the government to be notified whenever a court is considering whether to make a declaration of incompatibility, and grants them the right to be joined as a party to the proceedings.104

118.The sovereignty of Parliament and the separation of powers are also acknowledged in the fact that the HRA does not place any duty on the Government to remedy the incompatibility and nor is there any obligation on Parliament to accept any remedial action the Government proposes. Largely for this reason, the ECtHR held in 2006 that a declaration of incompatibility did not amount to a domestic “effective remedy”105 that needed to be exhausted before a claim could be brought to the Strasbourg Court.106 The ECtHR has not, however, found that a declaration of incompatibility violates the Article 13 ECHR obligation to provide a victim with an “effective remedy” because Article 13 does not require a contracting states to put in place measures by which individuals can challenge the validity of primary legislation.107

119.We heard evidence recognising section 4 as the key provision by which the HRA maintains respect for the sovereignty of Parliament. Lord Neuberger described it as “a very elegant way of getting the courts to be free to do their job of deciding whether a statute is inconsistent with human rights, but then paying proper regard to parliamentary sovereignty by saying that it is over to Parliament to decide what to do about it”.108

120.No matter how egregiously a court may consider an Act of Parliament to violate Convention rights, it cannot strike it down, declare it invalid or otherwise prevent it having ongoing effect. The court can only refer the matter back to Parliament. In so doing, however, it indicates to Parliament the likely result should the matter remain unresolved and the case go to Strasbourg. As Lady Hale explained:

“the declaration is a discretionary matter. We do not have to make one, but it is a useful tool to send a warning shot, basically, over the bows of Government and Parliament as to what we think would happen when the case got to Strasbourg, if it did.”109

121.The declaration of incompatibility under section 4 HRA provides an elegant solution to the potential conflict between the protection of fundamental rights and the sovereignty of Parliament. Where a human rights compatible interpretation is not possible, the courts are able to identify primary legislation that is incompatible with human rights, drawing it to the attention of government and Parliament, but they cannot go further.

122.Where declarations of incompatibility have been made, the government and Parliament have in every case ultimately legislated to remedy the incompatibility. From a human rights perspective, and from the perspective of respecting the parliamentary intent behind the Human Rights Act, this is laudable. Yet even for those who are sceptical about the role of the courts in decisions concerning human rights, or even about human rights generally, the key point is that the HRA has not compelled the government and Parliament to remedy the incompatibility. Parliament has chosen to take the steps it has. Its sovereignty remains intact.

A measure of last resort

123.As noted in the IHRAR terms of reference, the courts have identified the declaration of incompatibility as an option of “last resort”, emphasising the importance of the section 3 obligation to interpret legislation compatibly with the Convention where possible. Lord Steyn observed in the case of Ghaidan v Godin-Mendoza that “resort to section 4 must always be an exceptional course”, due to the fact that there is “a strong rebuttable presumption in favour of an interpretation consistent with Convention Rights”.110

124.The courts treating the declaration of incompatibility as an option of “last resort” is consistent with the approach taken by the Government of the day during the passage of the Human Rights Bill.111 It is also consistent with what we consider to be the simple overarching intention of the HRA and the ECHR - to prevent violations of human rights wherever possible. Consistent with this ‘last resort’ approach, despite the many thousands of cases that have come before the courts over the past two decades, there have been only 43 declarations of incompatibility since the HRA came into force in October 2000.112 Courts have generally felt themselves able to interpret legislation compatibly with Convention rights where deficiencies have been identified.

125.The IHRAR terms of reference suggest that the rarity of declarations of incompatibility may be seen as a problem and asks whether declarations of incompatibility “should be considered as part of the initial process of interpretation rather than as a matter of last resort, so as to enhance the role of Parliament”. By taking the resolution of human rights incompatibilities away from the judiciary and into Parliament, increasing the number of declarations of incompatibility made by the courts could be seen as a method for rebalancing the separation of powers in favour of the legislative branch. However, we have concluded that this is a solution looking for a problem.

126.Firstly, we received no evidence suggesting that there are cases in which declarations of incompatibility should have been made by the courts but were not. Indeed, Lady Hale suggested that in her experience the Government would get its way when the court came to consider whether a section 3 HRA interpretation was possible or whether a section 4 declaration of incompatibility would be made:

“Usually the Government argues first for compatibility, but if we decide that it is incompatible, there is then a choice between the interpretive obligation, if we can, to try to cure it or simply to make a declaration of incompatibility. I cannot remember a case that I was involved in where we did not do whichever of those two the Government asked us to do. The Government’s first line was always, “It’s compatible” but if they lost on that they would then argue either for using the interpretive obligation or for a declaration, and we would usually do what the Government asked for in that respect”.113

127.Secondly, we did not receive any evidence suggesting there is an appetite from Parliamentarians for greater involvement in resolving human rights incompatibilities identified by the courts. The pressure on the Parliamentary timetable is already great. Requiring the legislature to grapple with every instance of legislative incompatibility with the Convention, whether in a recent statute or one passed many years before the HRA came into force, would put a significant additional burden on the Government and Parliament (and the Parliamentary timetable). Were the role that Parliament plays in the remedial order process to be ‘enhanced’ in some way, this would occupy even more time that Parliamentarians may not feel they have available.

128.Thirdly, while the declaration of incompatibility serves an important purpose in preserving Parliamentary sovereignty and the separation of powers, its use has the inevitable consequence of leaving in operation legislation assessed by the Higher Courts as being incompatible with human rights. So greater use of section 4 would mean more instances of the UK remaining in breach of its international human rights obligations and likely leaving more individuals continuing to suffer violations of their rights. This in turn would be in breach of the UK’s obligations under Article 13 ECHR to provide an “effective remedy” for a breach of a Convention right.

129.Even if the Government and Parliament do choose to remedy an incompatibility identified by the court, it can take years for this to be completed. The timeframe for legislative responses to declarations of incompatibility is likely to be even greater if the numbers of declarations made were to increase significantly. In the meantime, the victims who brought the case to court, and others affected, are left without redress for the violations of their rights.

130.Given that the current position of the ECtHR is that a declaration of incompatibility is not an effective remedy, there would likely be an increase in applications to Strasbourg from those claimants who would no longer obtain a Convention compliant read-down of legislation in a domestic court. Any applications to the European Court of Human Rights that were successful would place an obligation on the UK to implement the Court’s judgment–potentially including an obligation to legislate to remedy the incompatibility. This would again place an additional burden on the Parliamentary timetable.

131.The use of section 3 HRA interpretation wherever “possible” and reserving section 4 declarations of incompatibility as a remedy of last resort creates a sensible and respectful balance between the roles of the Judiciary and Parliament. An increase in the use of declarations of incompatibility at the expense of section 3 interpretations would have significant ramifications: leaving victims without effective redress for human rights violations and placing a considerable additional legislative burden on Government and Parliament. There is again no case for reform.

Conclusions

132.The IHRAR terms of reference question whether there is any need for change to the framework established by sections 3 and 4 HRA. The evidence provided to us was overwhelmingly against any change and very positive about the existing legal framework.

133.While one witness who gave oral evidence to us suggested that the HRA “had contributed to the unbalancing of [the] relationships” between judges, Ministers and parliamentarians,114 the overwhelming majority of the evidence we received praised the balance that the HRA, and in particular the framework established by sections 3 and 4, strikes between the different branches of the state and between the rights of the individual and the sovereignty of Parliament. For example, the framework was described in written evidence to us as “carefully crafted”;115 “well crafted [and] delicately balanced”;116 “carefully constructed”117 and as “striking a sensible and elegant balance between providing effective legal remedies and respecting Parliament’s sovereignty.”118

134.In oral evidence, Lord Neuberger described the HRA as “a very cleverly drafted piece of legislation”, while Dominic Grieve QC PC added that it was “a masterpiece of respect for parliamentary sovereignty.”119 Even Professor Graham Gee, who raised concerns about the operation of the Human Rights Act, acknowledged that “Some of the saving grace for those who are critics of the Human Rights Act is that its structure was designed to minimise the political role of domestic courts.”120

135.While the IHRAR does not raise the possibility of wholesale change to sections 3 or 4 HRA, as Les Allamby, Chief Commissioner, Northern Ireland Human Rights Commission, told us: “I would not underestimate the ability [of] to change the machinery—that sounds a rather benign phrase—to make a very significant difference.”121 In respect of sections 3 and 4 we are inclined to agree with Lady Hale’s comment to us about the HRA in general that “I cannot myself think of a fix that would make things better as opposed to potentially making things worse.”122

136.While the changes to the HRA mooted by the IHRAR terms of reference, including in respect of sections 3 and 4, look to be relatively minor, minor changes could have a major impact on the protection of human rights in the UK.

137.Sections 3 and 4 HRA work together to balance protection for fundamental rights, an aspect of the rule of law, with the separation of powers and respect for Parliamentary sovereignty. We have not been provided with evidence justifying any change to the careful balance struck by these provisions, and consider that the changes mooted by the IHRAR terms of reference would be damaging for this balance rather than beneficial.

59 Most obviously, the constitution of the United States of America.

60 Until 2009, the presence of active Law Lords in the House of Lords also mixed the Judiciary into the Legislature.

61 Tom Bingham, ‘The Rule of Law’, Allen Lane, 2010

62 A V Dicey, An Introduction to the Study of the Law of the Constitution (first published 1885), 10th edn, 1959, London: Macmillan, pp 39–40

63 Hudson Institute, Margaret Thatcher - Follow the Leader, American Outlook, Spring 2000

64 Tom Bingham, ‘The Rule of Law’, Allen Lane, 2010

65 Tom Bingham, ‘The Rule of Law’, Allen Lane, 2010

66 [1980] 1 All ER 529 at 541

67 Third Reading, HC Deb, 21 October 1998, col 1358

69 Secondary legislation is also known as ‘subordinate’ or ‘delegated’ legislation. As well as statutory instruments, the term secondary legislation also includes statutory rules and orders and church instruments

70 As Lord Brandon put it in In re M. and H. (Minors) (Local Authority: Parental Rights) [1990] 1 A.C. 686 , 721: “while English courts will strive when they can to interpret statutes as conforming with the obligations of the United Kingdom under the Convention, they are nevertheless bound to give effect to statutes which are free from ambiguity in accordance with their terms, even if those statutes may be in conflict with the Convention.”

71 R v A (No2) [2002] 1 AC 45

72 Ghaidan v Godin-Mendoza [2004] 2 AC 557

73 Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 33

74 Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 121

75 Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 33 and 121

77 Q5 [Dominic Grieve QC]

78 Q5 [Lord Neuberger]

79 Q55 [Helen Mountfield QC]

80 Cambridge Centre for Public Law (HRA0012)

81 Q55 [Professor Gee]

83 Q55 [Richard Hermer QC]

84 Q55 [Helen Mountfield QC]

85 JUSTICE (HRA0069)

86 The Law Society (HRA0063)

87 Based on research conducted by two lawyers from the organisation Justice. Putting these results into some context, in 2019 alone the Administrative Court received 3,400 applications for judicial review and the Queen’s Bench Division of the High Court saw 4,600 proceedings started. These are the types of claims most likely to give rise to human rights arguments, but the precise number that do raise human rights issues is not available.

88 R (Nicklinson) and another v Ministry of Justice and others [2015] A.C. 657

89 Q56 [Joshua Rozenberg QC]

90 Q56 [Helen Mountfield QC]

92 For more detail, see the House of Commons Background Paper: Statutory Instruments, Number 06509, 15 December 2016

93 The Strathclyde Review of December 2015 (Cm 9177) reported that the last affirmative SI not to receive Commons approval was in 1978 and that the House of Lords had rejected SIs on only 5 occasions since 1968.

94 “As for secondary legislation, the courts have already always had the power of scrutiny of secondary legislation and the power in certain circumstances to override it.” Q5 (Dominic Grieve QC)

95 Q58 [Helen Mountfield QC]

96 Q58 [Richard Hermer QC]

97 Q4 [Dominic Grieve QC]

98 UK Constitutional Law Association, Joe Tomlinson, Lewis Graham and Alexandra Sinclair: Does judicial review of delegated legislation under the Human Rights Act 1998 unduly interfere with executive law-making?, February 22, 2021

99 Q58 [Professor Gee]

100 Second Reading, HL Deb, 3 November 1997, col 1294

101 Jack Straw at Second Reading in the House of Commons: “What the Act makes clear is that Parliament is supreme, and that if Parliament wishes to maintain the position enshrined in an Act which it has passed, but which is incompatible with the Convention in the eyes of a British court, it is that Act which will remain in force.” Hansard HC 16 February 1998, col. 773

102 Lord Irvine during the Second Reading in the House of Lords: “A declaration of incompatibility will not itself change the law. The statute will continue to apply despite is incompatibility. But the declaration is very likely to prompt the Government and Parliament to respond.” Hansard HL, 3 November 1997, col. 1231

103 While the section 3 interpretative obligation applies to all courts, declarations of incompatibility may only be made by: the High Court and Court of Appeal in England and Wales or Northern Ireland; the High Court and Court of Session in Scotland; the Supreme Court; the Privy Council; the Court Martial Appeal Court and, in certain cases, the Court of Protection (see section 4(5) HRA)

104 Human Rights Act 1998, section 5

105 Under Article 35(1) ECHR, an applicant may only bring a claim to the ECtHR if they have exhausted all the effective remedies that are available to them in their own country

106 See Burden v UK, Application No 13378/05, Judgment, 12 December 2006. While the Court indicated at the time that it was possible the Court’s position might change if there was “at some future date evidence of a long-standing and established practice of ministers giving effect to the courts’ declarations of incompatibility”, and this possibility was repeated in a 2016 judgment, at the moment the position remain unchanged.

107 Greens and MT v United Kingdom (2011) 53 EHRR 21 at [90]-[92]

108 Q9 [Lord Neuberger]

110 Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 50

111 See the Secretary of State for the Home Department during the Commons Second Reading debate: “We expect that, in almost all cases, the courts will be able to interpret legislation compatibly with the Convention. However, we need to provide for the rare cases where that cannot be done.” HC Deb, 16 Feb 1998, col 780

112 And 9 of these were overturned on appeal. See Ministry of Justice, Responding to human rights judgments: Report to the Joint Committee on Human Rights on the Government’s response to human rights judgments 2019–2020, CP 347, Dec 2020

114 Q60 [Professor Graham Gee]

115 The Baring Foundation (HRA0015)

116 JUSTICE (HRA0069)

117 Child Poverty Action Group (HRA0075)

118 Humanists UK (HRA0023)

120 Q56 [Professor Gee]

121 Q38 [Les Allamby]




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