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What, if anything, does the Human Rights Act 1998 add to the protection of human rights? What would be lost by its repeal? As stated by Lord Bingham in Ullah1, "The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less". I argue that the Human Rights Act (HRA) aids in the discharge of this duty by widening the scope of available rights from rule of low focused common law rights, after which I analyze two important sections (s.3, s.4) of the HRA which strengthen judicial interpretation and allow legal constitutionalist elements to influence the political process without compromising parliamentary sovereignty, a balance that could be lost upon repeal. Scope The HRA has strengthened the protection of individual rights because Convention rights are broader than common law rights. Before the HRA, the focus of common law with regards to human rights was generally on matters concerning the rule of law principles of due process and access to courts. For instance, the landmark Anisminic2 case involved an ‘ouster clause’, which, on the face of it, seemed to preclude judicial review of a tribunal’s decisions. To claim remedy for other rights not conferred by the common law, such as a substantive right to privacy (Malone), claimants had to go to Strasbourg arguing a breach of Art.8 of the ECHR. This could only be done after exhausting domestic remedies, which was an expensive and time-consuming process. Post- 2000, litigants could enforce a broader range of rights in domestic courts which, due to reduced cost and delay, enabled better protection. Were the HRA repealed, protection would be undermined because only narrow common law rights would be available for claimants in domestic courts. For example, Moohan3 held that there is no common law right to vote analogous to that in the Convention, highlighting that disparities between bodies of common law and Conventions rights continue to exist. However, the extent to which protection would be undermined is limited because common law rights evolve alongside the HRA: any rights dispute starts with the common law (Kennedy4) and courts increasingly rely on common law rather than Convention rights (e.g. Daly5; Osborn6). It should be noted the Daly and many subsequent cases wherein the Supreme Court has placed an emphasis upon the common law as a source of fundamental constitutional values (A v BBC, R (Evans) v Attorney-General) involve rule of law principles the courts have shown a commitment to even prior to the HRA. If this trend of reliance on common law continues, perhaps the scope of protection under the common law would become more clearly defined and encompass a wider range of rights. At present however, the degree to which the body of common law constitutional rights exceeds its pre-HRA self 1 R (Ullah) v Special Adjudicator [2004] UKHL 26 2 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

3 Moohan v Lord Advocate [2014] UKSC 67 4 [2014] UKSC 20 5 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 6 [2013] UKSC 61

remains obscure and as such a repeal of the HRA would decrease the range of rights available. Section 3 S.3 strengthens the protection of individual rights because its interpretive obligation is more far-reaching than the principle of legality – s.3’s common law counterpart. Unlike the principle of legality, s.3 permits a Convention compliant interpretation – even when contrary to clear and unambiguous statutory wording. Lord Phillips thus acknowledged in Ahmed that the principle of legality does not permit a court “to disregard an unambiguous expression of Parliament’s intention” whereas s.3 does, and Ghaidan7 confirms that s.3 requires courts to “depart from the unambiguous meaning the legislation would otherwise bear”. The repeal of s.3 would undermine protection because it has been invoked to justify normally unfamiliar levels of judicial interventionism (e.g. R v A No 2). When accused of rewriting legislation, courts plead the implementation of Parliament’s sovereign will when enacting the HRA. The courts also remain careful to show deference to parliamentary legislation when determining when it is possible to secure an ECHR-compatible interpretation. Anderson8 shows that the courts will not adopt an interpretation that conflicts with a fundamental feature of the legislation concerned and would not use s3 to ‘rewrite’ legislation as is a concern held by critics of the judicial power conferred by the HRA. Without the protective shield if parliamentary sovereignty, an interpretive technique as strong as s.3 threatens to undermine Parliamentary sovereignty and the separation of powers – by courts transferring the right to “make or unmake any law” from an elected and democratically accountable Parliament to themselves (Nicol9). The courts would probably revert to the weaker principle of legality to avoid threatening these fundamental principles. Section 4 S.4, which has no pre-HRA equivalent, further strengthens individual rights protection by allowing the courts to declare legislation incompatible with the Convention. Whilst a declaration upholds Parliamentary sovereignty) by not imposing any domestic legal obligation upon Parliament, it nevertheless puts considerable pressure on the political branches to remedy the incompatibility. Belmarsh suggests that the HRA is, to some extent, capable of curbing the worst excesses of majoritarianism even where the rights of an acutely unpopular and small minority such as suspected terrorists, are at stake. In this way, it enables legally enshrined human rights standards to shape the course of the political process. By linking the UK’s domestic rights regime with a supranational rights system including the UK’s international law obligations, s.4 also contains a legal constitutionalism element. A 7 Ghaidan v Godin-Mendoza [2004] UKHL 30 8 R (Anderson) v Home Secretary [2002] UKHL 46 9 Nicol, D – Are Convention rights a no-go zone for Parliament? (2002) – Public law

declaration signals that valid domestic law is incompatible with a Convention binding upon the UK in international law (Elliott10). The high likelihood that the ECtHR will agree with such domestic courts exerts further pressure on Parliament (or the Executive) to make necessary amendments. The s.4 protection is therefore stronger than common law protection because s.4 sidesteps domestic sovereignty by giving effect to an international treaty with international enforcement mechanisms. The protection afforded to common law rights is necessarily weaker because it exists solely in the domestic sphere, governed by Parliamentary sovereignty. At a minimum, Young argues11 that s.4 opens up a ‘democratic dialogue’ between parliament and the courts about human rights issues: the courts state their view but respect sovereignty by giving Parliament the final say. The s.19 statement of compatibility for every Bill as well as the role of the Joint Committee on Human Rights strengthen this political engagement. The HRA has thus led to fuller political engagement with, and thus better political protection of, human rights – a human rights culture, catalysed by the HRA’s enactment, that should survive its repeal. To conclude, while the future development of the common law and the impact of the Convention in increasing political engagement with human rights could survive repeal, the balance struck by the HRA in defining the role of the courts with deference to legislative sovereignty, as well as the protection of a wider range of rights than the common law currently seems to would be lost. Word Count: 1113 words

MENTION SECTION 6 in a thematic way: Courts and judicial review of the Executive

10 Elliott and Thomas, Public Law (2020) 11 A Young, ‘Deference, Dialogue, and the Search for Legitimacy’ (2010) OJLS 815...