Repeal and replacement of the Human Rights Act 1998 (HRA) has been on and off the political agenda for years. The latest initiative is the Bill of Rights Bill (BoRB), introduced by Justice Secretary, Dominic Raab which may return to the Commons for its Second Reading in the coming weeks.
Much has been written about the proposed BoRB. Our focus in this post is on how the proposals would change the role of the judiciary in cases concerning Convention rights. We use the notion of interpretive space to illustrate the competing agencies granted to judges in the HRA versus the BoRB. Our contention is that while the text of the HRA instituted an active relationship between Parliament, the executive, and judges with regards to the overall meaning and purpose of the Act, the BoRB would instil a much more limited role for the judiciary. After two decades peppered with criticism of the actions of judges in human rights adjudication, from politicians, the media, and think-tanks, this comes as no surprise. Whilst the outcome may appease those concerned about judicial overreach, it also represents a change to constitutional culture which compromises the potential for institutional collaboration on difficult human rights questions.
1. Interpretive Space
Some legislative text leaves little room for interpretation. Take for example s.3(2) HRA which provides that a duty given in s.3(1) ‘applies to primary legislation and subordinate legislation whenever enacted’. There can be little disagreement about the meaning of this text. By contrast is a text which creates an interpretive space; a bubble within which a plurality of possible interpretations may be afforded either of the provision in question, or the instructions the provision articulates. The meaning and scope of any such text requires definition. The obvious example is the duty provided in s.3(1) HRA: ‘so far as is possible’ judges must read legislation compatibly with Convention rights. The duty itself is clear, but it is for the judges to determine when that duty can be discharged – judges must interpret the scope of ‘possible’. The parameters of any legislative power are defined through the combination of the statutory language and its interpretation by the judges.
2. Interpretive Space in HRA v BoRB
There are significant differences between the nature of the interpretative space under the HRA and the currently proposed BoRB. The interpretative space in the HRA 1998 invites judges to participate in shaping their duties under that Act. The text, and its subsequent interpretation, reflect an aspect of what Kavanagh describes as a ‘collaborative constitution’. In interpreting the word ‘possible’ under s.3(1), for example, the courts have been conscious of a legislative scheme which establishes the alternative remedy — the s.4 declaration of incompatibility — as a last resort, as well as reflecting perceptions of appropriate constitutional balance. Thus the interpretative refinement is translated into a settlement where words can be read in, language can be strained, meanings can be modified and, on occasion, the intention of the enacting Parliament can even be departed from, while stopping short of rendering a provision ‘unintelligible or unworkable’, or going against the ‘thrust’ or ‘grain’ of the legislation.
Another example is s.2 HRA which invites judges to define the relationship between UK jurisprudence and Strasbourg. Section 2(1) places judges under a duty to ‘take into account’ Strasbourg jurisprudence but it is for judges to determine further instructions. This interpretive space has produced a wealth of debates on the propriety of domestic judges in leading, following, or mirroring the Strasbourg jurisprudence. Courts have adopted a variety of interpretations of the duty ranging from deferential to assertive. See, for example, the posts by Masterman and Graham on this site.
The HRA is an example of a legislative text which empowers an interplay between Parliament and the judiciary in crafting the Act’s operation. Indeed, the debates which have unfolded within each respective interpretive space have all had important impacts on the strength of the HRA as a rights-based document. Debates within the interpretive space of s.2 have allowed judges to refine the weight to be afforded to the Strasbourg jurisprudence, while the space of s.3 has set the limits for judicial legislating. The restraint exercised in the ‘discretionary space’ of s.4 has regulated the number of declarations of incompatibility made.
By contrast, the dominant theme of the BoRB is to restrict judicial agency. Despite multiple mentions of the principal role of the Supreme Court (see, cl.1(2)(a) & 3(1)) in giving meaning to Convention rights, the BoRB purports to minimise the collaborative relationship between Parliament and the courts. Most obviously, courts are ‘no longer required to read and give effect to legislation, so far as possible, in a way which is compatible with the Convention rights’ (cl.1(2)(b)). The broadly framed duty to ‘take into account’ Strasbourg jurisprudence under s2(1) HRA has also been re-imagined. In interpreting Convention rights, courts must have ‘particular regard’ to the Convention text and ‘may have regard’ to the travaux préparatoires of the treaty (cl.3(2)(a)), as well as any corresponding development of common law rights (cl.3(2)(b)). Interpretative space is still present but framed, as Lord Mance notes, to constrain ‘ordinary judicial approaches’.
This new interpretative space is also not always coherent. In cl.3(3)(a) courts are told that they ‘may not’ expand on Strasbourg interpretations unless there is ‘no reasonable doubt’ that the ECtHR would adopt that interpretation if the case were before it. Whilst this clause is ostensibly a codification of the Supreme Court judgment in Elan-Cane, set in the wider context of the Bill, it is a curious modification of interpretative space. The clause appears to create a prohibition on expansive interpretations but does so while creating a condition relating to a separate interpretative exercise (predicting the ECtHR’s interpretation of a provision). This seems to create a much stronger tie to the Strasbourg jurisprudence than was given by the HRA – a strange outcome whenone of the key aims of the Bill is to downgrade the influence of Strasbourg case law.
The hallmark of the approach under the BoRB is a repeated tendency to tell judges not only what needs to be considered within the interpretive space, but also to micromanage their work by telling them what weight must be afforded to varying considerations. For example, the BoRB requires ‘great weight’ to be attached to freedom of speech (cl.4(1)) and the ‘greatest possible weight’ is to be given to the importance of protecting the public (cl.6(2)). Courts must give ‘great weight’ to avoiding obligations which impact on a public authority’s functions and expertise, protect those involved in criminal activity, require a higher standard in an investigation than is reasonable, or which affect the operation of primary legislation (cl.5). And then there is cl.7(2)(b), which requires the ‘greatest possible weight’ to be given to the primacy of Parliament when determining the balance between different policy aims and Convention rights. And yet as Robinson has explained in more detail (on clause 5 in particular), significant interpretative work will still be required in order to construct a workable scheme.
Creating a plethora of heavily directed interpretive spaces may (temporarily) appease those who worry about judicial interpretative creativity, but there will be costs – both practical and political.
First, by drawing tight parameters around the judicial treatment of the Strasbourg jurisprudence and directing judges on the methods for interpreting Convention rights, the BoRB is almost certain to result in divergence between the interpretation of Convention rights in the UK and at the ECtHR. Indeed cl.3(3)(b) accepts that courts ‘may adopt an interpretation of [rights] that diverges from Strasbourg jurisprudence’. The removal of any judicial duty to read legislation compatibly with Convention rights is also likely result in divergence on the protection of rights. This divergence is likely to result in an increase in applications to the ECtHR and in the number of adverse findings against the UK. This is not surprising. Both the Justice Secretary and Home Secretary have criticised the Strasbourg Court and, of course, divergence with the ECtHR feeds into the wider rhetorical war on “Europe”. Yet, since there is no stated intention to withdraw from the Convention, international legal obligations will still require the government to comply with judgments and decisions of the ECtHR.
Second, circumscribing the nature of domestic judicial engagement with the Strasbourg jurisprudence will place obvious limits on the dialogue between UK courts and their Strasbourg counterparts. Distancing the UK from the ECtHR may well ‘re-balance’ that relationship (cl.1(2)) but it is also likely to compromise the ability of UK courts to contribute to or influence the development of the Convention case law. One of the reasons that the IHRAR report concluded that ‘judicial dialogue is working well and does not need to be reformed’ was that this type of dialogue could help to justify divergence from the Convention case law and help to demonstrate that the UK has complied with the requirements of the Convention.
Third, by repealing s.3 HRA, the government will lose its ability to side-step awkward political terrain. In Bellinger v Bellinger, for example, the government’s preference for a resolution of incompatibility by s.3 rather than s.4 was attributed to the ‘political costs’ involved in drafting and enacting new legislation, as well as the legislative time involved. Absent the ability for judges to cure legislative incompatibilities, an increase in the number of declarations of incompatibility also seems inevitable. It is likely that the government will regret that sort of exposure.
The drafting of the HRA and the BoRB illustrate fundamental differences in constitutional culture. The nature of the interpretative space in the HRA reflects a culture of constitutional collaboration. The courts are participants in the mission to secure Convention rights in domestic law, entrusted both to establish principles for assessing compatibility and with identifying the parameters of their remedial powers. The BoRB, on the other hand, seeks to establish a much more limited role for the judiciary. There are explicit and implicit nudges on how human rights obligations are to be interpreted. A predominance of textualism, conservatism and, what Lady Hale refers to as ‘originalism’, pervades the Bill, alongside a clear rebalancing of the relationship between the courts and Parliament – from partnership to paternalism.
This change in legislative tone reflects differences in legislative aims. The HRA is expressly Strasbourg facing. “Bringing rights home” would bring Convention rights into the jurisprudence of UK courts, their interpretation would be woven into UK law, and it would be possible for domestic judges to influence those interpretations. The BoRB, on the other hand, targets (and celebrates) divergence from the ECHR regime and diminishes domestic judicial involvement in the interpretation of rights – both at home and in Strasbourg. The costs are predictable. Domestic judges will have less scope to engage in dialogue with the ECtHR. There will be an increase in the number of applications made against the UK in Strasbourg and the number of adverse judgments will go up. To meet the UK’s international legal obligations, the government will likely have to expend much more political capital on sensitive rights-based issues. And as Rajiv Shah has recognised, these costs will be for the Conservative government to own.
Both authors note their thanks to participants at the SLS funded conference: ‘The Human Rights Act After 22 Years’, and to Kathryn Hollingsworth, Sean Molloy and Colin Murray, Alison Young and Mike Gordon for their comments on initial drafts.
Hélène Tyrrell, Lecturer in Law, Newcastle University
Conall Mallory, Senior Lecturer in Law, Newcastle University
(Suggested citation: H. Tyrrell and C. Mallory, ‘Interpretive Space: The Human Rights Act 1998 v the British Bill of Rights Bill’, U.K. Const. L. Blog (23rd November 2022) (available at https://ukconstitutionallaw.org/))