Chapter 6

The Supremacy of the Judges

In 2002, there was a rare outburst of judicial irritation from one of the most phlegmatic as well as influential of judges in the post-Human Rights Act era, Lord Bingham of Cornhill. Tom Bingham had made his fortune and his name at the commercial end of the Bar before becoming a judge so successful that he held the most senior positions in the judiciary as though they were naturally on rotation for his exceptional talent: Master of the Rolls, Lord Chief Justice, Senior Law Lord, and, almost, President of the newly formed Supreme Court (he was to retire just before the new court got going). We mentioned him briefly before as one of the key judges in the move to rights that the new, liberal dispensation among the leading judges in the 1990s had helped make possible. It was as Senior Law Lord that in the course of R (Anderson) v Secretary of State for the Home Department he indirectly chided a colleague on the bench in the House of Lords for adopting an approach to the Human Rights Act which, if followed by others, would amount to an act of ‘judicial vandalism’. What had irritated Lord Bingham was a particular reading of section 3, a provision mentioned at the end of Chapter 5 as the main source of the power which has meant that the judges have to engage in a fresh way under the Human Rights Act. For something so important—about which so many misconceptions have grown—it is surprisingly short; indeed we were able to summarize it in a single clause at the start of Chapter 5. Here it is in full:

  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
    1. applies to primary legislation and subordinate legislation whenever enacted;
    2. does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
    3. 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.

The (b) and (c) parts of the second subsection here remind us of the impotency of the Human Rights Act in the face of parliamentary determination to flout its terms, the myths which we discussed in Chapter 5. For present purposes the bits to concentrate on are s 3(1) and 3(2)(a) and since the second of these is a straightforward assertion of the reach of the provision (into the future as well as the past, a move which governs only until such a point in time as the legislature in its sovereign power determines that it should not), what we are really interested in is the first subsection. And that in turn leads to a focus on a single word, ‘possible’. The judges are allowed to ‘read’ all legislation so as to make sure that it is ‘given effect’ to in a way that satisfies the Convention rights (all neatly set out in schedule 1) but only where this is ‘possible’. Not where it is impossible then. But what are the limits of the possible?

The point exercised Parliament when the proposed law was put before it in 1997/8. The measure was drafted in this way as a compromise between the New Labour human rights ultras and the old school human rights sceptics in the party, the tension between whom gave birth to the Human Rights Act in this particular shape (a point we already mentioned towards the start of Chapter 5 and which need not be dwelt on further here). We know that ‘possible’ means more than ‘reasonably possible’ because an amendment to that effect was rejected by the Commons. The then Lord Chancellor Lord Irvine—one of the primary parents of the measure and responsible for steering it through the Lords—was equally emphatic that ‘possible’ meant more than ‘probable’ though we might be forgiven here for thinking that he was merely stating the obvious. Responding to the proposed amendment in the House of Commons the then Home Secretary Jack Straw said that it was the government’s ambition to have ‘the courts … strive to find an interpretation of legislation that is consistent with convention rights, so far as the plain words of the legislation allow, and only in the last resort to conclude that the legislation is simply incompatible with them’. Beyond this rather flimsy guidance, the matter was simply left by the legislature to the courts to resolve. So at this very first stage of our enquiry into supposed judicial power under the Human Rights Act, we can be quite clear that the judges did not assert the interpretative responsibility we will be discussing; they had it thrust upon them by Parliament.

On the whole, subject to the ‘judicial vandalism’ that Lord Bingham saw off, the judges have made an excellent fist of a difficult hand, working to discern what Parliament meant against a background of knowing (albeit never of course admitting) that Parliament did not itself (in any kind of collective way at least) know what it was doing, beyond simply deploying the word ‘possible’ in the way that it did. In this chapter of the book we detail exactly how they have gone about doing this, and are on the whole very supportive: this case law really makes sense of the Act and of the judges’ modest role within it – whatever the anti-rights politicians might say!

Britain, Europe and Human Rights