Repeal of Human Rights Act would make no difference

Lord Hope

Lord Hope, the Deputy President of the UK Supreme Court, has said that repealing the Human Rights Act would have little practical effect effect on the enforcement of rights in the courts.

Joshua Rozenberg reports Lord Hope’s comments in the Law Society Gazette:

… what Hope did confirm – and I have never before heard a serving judge say this so clearly – was that repealing the Human Rights Act 1998 would, by itself, make very little difference to way such rights are enforced in our courts. As he explained, the most significant change to the UK’s relationship with the Human Rights convention came in 1966, when Britain first allowed individuals to bring cases against the government; until then, claims against Britain could be brought only by other states. As a result, courts in the UK felt obliged to take the convention into account.

He went on to say that if the Human Rights Act were to be taken away now “all that jurisprudence is there… And the right of individual petition will be there. And we will still have to recognise that if we take a decision which is contrary to the human rights convention, somebody is going to complain to Strasbourg and that may cause trouble for the UKSo it’s very difficult to see how simply wiping out the Human Rights Act is really going to change anything until we withdraw from the convention – which, personally, I don’t think is conceivable.’

These comments echo those of the President of the Supreme Court, Lord Phillips, who has said recently in a lecture a limited number of acts of parliament – including the Human Rights Act – might soon be seen to have attained in law the status of “constitutional statutes”. This only applies to a handful of laws, but means that judges can apply those laws in ways which are unambiguously contrary to the will of Parliament (see our recent post: Increasingly muscular Supreme Court good for human rights).

The Human Rights Act is no longer under any serious threat. It certainly was pre-election, but after the forming of the Coalition, the Liberal Democrats would not accept the Act’s repeal as the Conservatives had pledged. Instead, the issue has been deferred for a while with the announcement of a Commission to investigate the creation of a Bill of Rights. It is clearly the view of the most  senior figures in the judiciary think that it would not be open for any government to withdraw from the rights enshrined in the European Convention on Human Rights, even if they chose to. This is unlikely to be tested, however.

It would be interesting, however, if the Human Rights Act was to be “supplemented” by a Bill of Rights, and if the consequence – intended or unintended – was to restrict certain rights enshrined under the Convention. For example, if the Bill sought to restrict protections afforded to convicted terrorists who cannot be extradited as there is a risk of them being tortured, an issue which has recently caused a stir. In that scenario, the Bill of Rights itself could be rendered unenforceable, and it appears that the Supreme Court would be only too happy to rule against the will of Parliament if the case were strong enough.

Whoever leads the impending Commission will have to be very careful not to set up this confrontation, as a (unwritten) constitutional crisis would only divert the Supreme Court from continuing the success it has enjoyed in its first year of business.

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