Our new government’s most closely-held commitment is to the primacy of human rights law. Shortly after taking office, Keir Starmer vowed that under his leadership the UK will ‘never’ leave the European Convention on Human Rights (ECHR). Last month, the Attorney General, Lord Hermer KC, undertook ‘to counter the false choice, offered by some, between parliamentary democracy and fundamental rights.’ Fair enough, save that Lord Hermer has confused protection of fundamental rights with judicial application of the Human Rights Act 1998 (HRA).
The HRA invites judges to answer questions that they are ill-suited to answer
It is true and important that Parliament enacted the HRA and has not yet repealed it. But it does not follow that judicial enforcement of that Act is the ‘vindication’ of democracy, as Lord Hermer put it. The HRA arms British judges to question the merits of legislation and policy on uncertain grounds, systematically undermining legal certainty and, worse, disabling parliamentarians and the public from deciding freely how we should be governed.
Human rights law – the ECHR and the HRA – has a rule of law problem, introducing a kind of make believe into our law and politics. Judges purport to give effect to legal rights that protect fundamental human rights. Yet in practice they often end up choosing what rights people should enjoy from time to time, which results in an unstable body of case law. This is a terrible way to make law or to decide on the merits of law. Judges adjudicating a dispute lack the institutional competence to find or to evaluate the reasons for or against legal change and, especially, they lack the democratic legitimacy to take responsibility for what should be done.
This is the core of the case against the HRA. The full force of the critique can be difficult to appreciate without some acquaintance with the vast case law to which the 1998 Act has given rise. With this in mind, Policy Exchange has today published a paper that helps to illuminate the impact of the HRA across time and across a wide range of policy domains. The HRA came into force in October 2000 and our new paper considers one striking or notable case decided in each calendar year of the Act’s operation. The twenty-five cases display the ways in which human rights law has changed the role of the court, requiring judges to answer political questions and then to employ novel (unpredictable) techniques of legal reasoning, unsettling the law.
Much public and parliamentary concern about the HRA has centred on migration, and in some cases lawfare or counter-terrorism law. Several of our twenty-five cases concern these topics, but many do not, arising instead in the context of criminal justice, housing, or social policy. In two striking cases, Rabone (2012) and DSD (2018) the Supreme Court imposed new positive duties on the NHS and the police respectively, disrupting the traditional common law approach to legal liability and distorting operational priorities. These cases spur other litigation and indeed this is a common theme, with several of the cases we note forming the tip of an iceberg of litigation and legal risk, which gravely complicates day-to-day government.
Human rights law encourages the myth that the court’s answer to a political question is somehow different
This is certainly true of Ziegler (2021), in which the Supreme Court allowed an appeal against conviction for deliberately obstructing the highway. The Court ruled that the rights of protestors, in this case against the arms trade, would be violated if convicting them of an offence would be a disproportionate response to their particular protest. This ruling has made life very difficult for trial courts in subsequent cases, not to mention the police on the ground. The judgment has also given rise to a host of further legal arguments about its extent and implications. In this case, as in others, the Supreme Court made bad law in attempting to apply the HRA.
Judges are good at adjudicating cases fairly according to settled law. They are not so good at answering political questions. Human rights law encourages the myth that the court’s answer to a political question is somehow different in kind and should not be robustly challenged by those who disagree. Strictly, the HRA leaves Parliament free to decide how to respond to a judicial declaration that legislation is incompatible with human rights law; but in practice, Parliament comes under considerable pressure simply to comply, to suspend its own critical faculties.
The problem is illustrated in our twenty-fifth case, Dillon (2024), in which the Northern Ireland High Court concluded that key provisions of the recently enacted Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 were unjustifiable. The Act aimed to draw a line under the Troubles, bringing an end to a cycle of expensive and fruitless litigation and investigation. The High Court rejected this rationale, concluding that there was no good reason for the legislation, which is a point of view but not a matter on which legal expertise has any bearing. The new government had already committed to repealing and replacing the 2023 Act but seems in addition to think that it would somehow be wrong for it to disagree with the judge’s evaluation.
Later this month, Parliament is set to consider a proposal to legalise assisted suicide. Two of the cases we profile in our Policy Exchange paper, Purdy (2009) and Nicklinson (2014), concern this topic. Both involved use of the HRA to campaign for a change in the law. But whether to change the law is a question that only Parliament can responsibly decide – no parliamentarian should ever outsource his or her judgement on this type of question to the courts.
The same holds more generally. The HRA invites judges to answer questions that they are ill-suited to answer, which encourages litigation to become politics by another means. In many cases, British courts will give poor answers to political questions, making bad law and/or undermining good law. Even if the courts resist this temptation, government action is constantly liable to challenge in this way, which is costly and debilitating. In thinking about human rights law and its future, parliamentarians and the public should look closely at the cases we have profiled, which confirm the negative impact that the HRA has had and looks set to continue to have.
Richard Ekins KC (Hon) is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford. He is the co-author of the Policy Exchange paper ‘The Impact of the Human Rights Act 1998 in Twenty-Five Cases’.
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