The rights time in the rights place
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21 February 2013
The time is ripe for Parliament to add a human rights stage to the legislative process
The Human Rights Act was a great achievement of the Labour Government. It has on the whole stood the test of time. It is well-crafted, balancing the roles of Parliament, the UK courts and the Strasbourg court. However, after almost a decade and a half it is right to consider what amendments might be made to improve it. My principal theme is that human rights should be enhanced by being placed at the very heart of the legislative process.
Parliamentary procedure is reached only in Section 19 of the act. The minister promoting a bill must consider whether its provisions are compatible with the European Convention on Human Rights (ECHR), and a bill may have been altered from early drafts to remove incompatibilities. A statement of compatibility is not endorsed by Parliament.
The bill is accompanied by official explanatory notes that may address ECHR rights, but these are not approved by Parliament. Parliament’s concern with ECHR-compatibility of legislation is on the fringes of Parliamentary procedure, in the valuable Joint Select Committee on Human Rights.
The question of human rights compatibility should go beyond legislative scrutiny in committee. A human rights stage should be added to the legislative process itself, and legislation so enacted should prevail.
Under Section 4 primary legislation cannot be struck down, but under Section 3 it can be interpreted contrary to Parliament’s intention. Section 3 should be confined to old legislation that has not been subject to a human rights stage.
Part 1 of the Localism Act 2011 (the new general power of competence for local authorities) provides a precedent for legislative interpretation that differs according to when and in what circumstances legislation is enacted.
Specific primary legislation that has passed a human rights assessment should be interpreted in accordance with Parliament’s intention in relation to that legislation. (The Parliament that in 1998 enacted the Human Rights Act, in 1999 enacted legislation that pursued a human rights objective, namely to protect rape victims and other complainants in sexual offence cases from indignity and humiliation. The law lords, however, in 2001 used Section 3 to distort the clearly intended meaning of the ’rape shield’ legislation, and bypass the purpose of Section 4.)
Section 2 requires clarification. Lord Irvine has recently shown that judges have misconstrued Parliament’s intention. Section 2 requires them to take account of Strasbourg’s decisions - no less and no more. Some judges have come perilously close to regarding themselves as being bound by Strasbourg. Irvine has called on them to reconsider. It is not known whether they will.
A good act can, in light of experience, be made better. The roles of the UK judges - in relation to both subordinate legislation and executive action - and of Parliament should be enhanced. Human rights should be brought to the centre of the legislative process with the addition of a human rights stage.
Human rights should truly be brought home, and public confidence in human rights enhanced.