The Supremacy of the Human Rights Act
In enacting the Human Rights Act in 1998 the new Labour government steered a clever route between judicial supremacism and judicial impotence. The Act provides that all public authorities are henceforth required to act in a way that is ‘compatible with the Convention rights’ which are duly set out in schedule 1 of the Act (thereby delivering on the promise of incorporating the Convention into UK law). Furthermore, the Act also demands that all legislation must be interpreted ‘as far as possible’ in a way that accords with those rights, and this is applied to Acts of Parliament not only already passed but also to be passed in the future. So far, so reasonably straightforward. The novelty came in what to do about Acts of Parliament. The Human Rights Act gave the judges the power in such circumstances to issue what the statute called ‘declarations of incompatibility’, setting out the inconsistency between the law under scrutiny and the Convention rights and declaring the breaches that it found to be such in a new and highly particular kind of judicial order. Here is the rub: these declarations were specifically stated to have no legal effect. They are grand announcements of judicial distaste but no more than that—shouts of antipathy dressed up as legal remedies but without the usual enforceability that we take for granted comes with victory in court.
These pseudo-remedies are the key way in which the Human Rights Act reconciles its commitment to human rights with its respect for parliamentary sovereignty. True, government has to make clear when introducing laws to Parliament the extent to which (if at all indeed) the proposed legislation fits with human rights, and of course there is also the interpretative power (already mentioned) available to the judges which gives them some power to reinterpret parliamentary stuff they don’t like. But that is it. Faced with implacable wording, the human rights norm must buckle before the parliamentary Grundnorm (to misuse a famous idea of a twentieth-century legal philosopher). Much of the rest of the Act is a working through of this basic insight: only the senior courts are allowed engage in such serious matters and before they do they have to alert the government as to the possibility. Public authorities that can point to legislation which gives them no alternative other than to act in a rights-conflicting way are liberated from their obligation to respect Convention rights. Where a declaration of incompatibility is issued, both of the other branches of the state (the executive and the legislature) have the opportunity to respond if they so wish, with the executive being empowered to do so by ministerial order only if there are ‘compelling reasons’ so to act without recourse to primary legislation. But these are options, not obligations. Parliamentary legislation stands unless Parliament (or exceptionally as we have just seen the executive) decides otherwise.
We look at the cases that have fleshed out these principles in the chapter of the book that is being summarized here. An effective Human Rights Act would see the declaration of incompatibility being used as a device to remind Parliament of what it had said in general terms it believed in, and to draw its attention to specific cases (as with the two just described) where for various reasons the legislators had felt driven to subvert its own ethical commitments. And because it takes fairly direct language to achieve this (or the interpretative power in section 3—the subject of Chapter 6—would kick in), it was not thought at the time of enactment that there would be many such declarations. So it has proved. A report issued by the Joint Parliamentary Committee on Human Rights early in 2015 noted that since the Human Rights Act came into force on 2 October 2000, UK courts have made a total of twenty-nine declarations of incompatibility, of which twenty have become final, having either not been appealed or survived appeal.
In analysing the trend in the making of these orders, the Joint Committee observed an interesting development: during the entire 2010–15 Parliament, only three declarations of incompatibility were made, with one of those still subject to appeal at the time of the publication of the report. The two confirmed cases dealt, respectively, with the human rights demand for fair procedures in the inclusion of people on a barred list in the context of safeguarding vulnerable people and with a human rights insistence on not being too profligate in the disclosure of the past convictions and cautions of individuals even where the safeguarding of others was the goal. The third concerned the Jobseekers (back to Work Schemes) Act 2013 and the High Court’s declaration in that instance was at the time the Committee reported subject to appeal to the Court of Appeal. And that was it—very little news to report. The Committee merely drew ‘to Parliament’s attention the strikingly small number of declarations of incompatibility made by UK courts under the Human Rights Act during the lifetime of this Parliament’, confirming as it did ‘the significant downward trend in the number of such declarations since the Human Rights Act came into force in 2000’. So in many ways what we have here is a tremendous fuss about what really is a non-story. In this chapter in the book I am very critical of the way the Supreme Court has in my view recently misunderstood and so misapplied the declaration jurisdiction. But that is a discussion for another day and another place, the book proper, not the web!