At the recent Conservative party conference, the new Lord Chancellor, Dominic Raab, signalled his intention to “overhaul” the Human Rights Act 1998 (the ‘Act’). It has since been reported that he is working on a “mechanism” to allow the Government to introduce ad hoc legislation to correct court judgements that ministers believe to be incorrect. Whilst the precise details of any mechanism remain to be seen, this notion is constitutionally problematic in that it potentially grants the executive wide powers to override the judiciary.

Inherent in the government’s efforts to reform the Act is the insistence that the courts can and have used the Act to make law through the incremental expansion of Convention rights and their application. This view was highlighted in comments by Mr Raab at an event following his recent speech at the conservative party conference, where he reportedly said of the European Convention of Human Rights (the ‘Convention’): “It’s the way it has been interpreted, in particular the licence given to courts to adopt through judicial legislation ever more elastic interpretation of rights”.

I briefly consider below the courts’ current powers, and their limitations, under the Act and the possible constitutional implications for further reform of the Act apparently envisaged by the Lord Chancellor.

Interpreting legislation under section 3 of the Act

Section 3(1) of the Act requires the courts to interpret and apply domestic legislation in a way which is compatible with Convention rights. However, the Act also imposes strict limits on the court’s powers. Sections 3(2)(b) and (c) safeguard Parliamentary sovereignty and ensure that Parliament, if minded to do so, may enact legislation which is not compatible with Convention rights. These provisions place a significant limitation on the extent to which judges can “make law” in respect of the application of Convention rights to the domestic context. The limitations on the courts’ interpretative powers under section 3 were highlighted by Lord Rodger in his judgment in Ghaidan v Godin-Mendoza [2004] UKHL 30, as follows at [110]:

“What excludes such provisions from the scope of section 3(1) is not any mere matter of the linguistic form in which Parliament has chosen to express the obligation. Rather, they are excluded because the entire substance of the provision, what it requires the public authority to do, is incompatible with the Convention. The only cure is to change the provision and that is a matter for Parliament and not for the courts.”

Declarations of incompatibility under section 4 of the Act

Under section 4 of the Act certain courts, including the Supreme Court, Court of Appeal and High Court, are empowered to make a declaration of incompatibility where a legislative provision is determined to be incompatible with a Convention right. This power does not extend to the Crown Court, County Court, magistrates’ courts or tribunals. After such a declaration has been made, section 10 of the Act provides that a Minister of the Crown may issue a remedial order to amend the relevant legislation so as to make it compatible with Convention rights. It could be said that this power under section 10 already provides an effective mechanism for ministers to legislate swiftly in response to adverse judgments of the courts regarding human rights, albeit one that requires judicial prompting and emphasises correcting legislation rather than judgments.

The power to make a declaration of incompatibility under section 4 of the Act is discretionary and the courts have shown deference to Parliament in deciding not to exercise this power in cases where the matter in question is already being considered by Parliament. For example, the Supreme Court refrained from making a declaration of incompatibility in the case of R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63 which concerned prisoner voting rights, noting that the issue was already being addressed by Parliament.

Importantly, section 4(6) of the Act provides that a declaration of incompatibility does not affect the continued validity, operation or enforcement of the provision in respect of which it is given and is also not binding on the parties in the proceedings in which it is made. It therefore remains open to the government to ignore any declaration of incompatibility under section 4 and to refuse to amend the offending legislation. As such, it is clear that section 4 does not impinge upon Parliamentary sovereignty.

Constitutional concerns

As touched upon above, there is a more fundamental constitutional point to be made in respect of purported efforts to grant ministers potentially broad powers to override or dis-apply court judgments which they deem to be incorrect; that this undermines the rule of law. It is of central importance in a constitutional democracy that the executive branch remains subject to the law. As the judiciary is tasked with the application of the law, this means in practice that the government should respect and follow the decisions of the courts. To furnish government ministers with powers to make new laws in order to bypass inconvenient court judgments risks relegating the role of the courts and further unbalancing the constitution. The spectre of a society in which the government no longer respects or upholds the rule of law should be a grave concern for us all.

Conclusion

As highlighted above, the Act already contains a number of provisions by which the power of the courts to “make law” is inhibited and Parliament’s role as the legislature is emphasised, and this has been respected by the courts.

The Lord Chancellor has said that the consultation on proposals to reform the Act will open within the next two months. We shall await with interest the extent of these proposals with a view to the broader constitutional implications which they present.