Human Rights Act 1998

Lord Etherton Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Etherton (CB)]

My Lords, it is a great privilege to participate in this debate, with so many moving and informative speeches. I want to mention in particular the speech of the noble Lord, Lord Cashman, which I thought graphically highlighted the way in which minorities, particularly the LGBTQ+ communities, have been assisted by having to go to Strasbourg—but, before the Human Rights Act came into force, at tremendous cost and with an inevitable delay.

Mention has been by a number of people of the now celebrated case of Smith and Grady, and a second case, Lustig-Prean and Beckett, against the United Kingdom, in which the brave claimants, all of whom had served in the military, had been dismissed from the military simply because they were of a homosexual orientation, not because they committed any sexual acts. In Strasbourg they successfully challenged the decision and policy of the Government, having failed, inevitably, before the divisional court and the Court of Appeal in this country. It was with great prescience that my noble and learned friend Lord Brown of Eaton-under-Heywood, who gave the leading judgment—in fact, the only judgment—in the divisional court, said that the Ministry was fighting against the tide of opinion, and it was only a matter of time before the policy would be revoked at an international level—and that is indeed what happened. But it took six years for that to be achieved, and at great cost.

I want to reinforce and support everything that was said by the noble Baroness, Lady Chakrabarti, about this remarkable Act—and the Human Rights Act is a remarkable Act. It melds together all sorts of apparently conflicting aspects of our constitution, and it works in a way which is not reflected anywhere else. She described it as a unique British invention. I would say it is a masterpiece, when you look at the way it is worked, of statutory provision.

I just want to reinforce that by looking at the three objectives that the Government set out for what they wanted to achieve through this Act and the way that they have been very effectively achieved. The first, on which almost everybody here has spoken, is bringing rights home. They have been brought home in the form of the obligation in Section 6 of the Act that:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”


We have to remember that before this Act, you could challenge the actions and policies of a public body by judicial review in our domestic courts only on the basis of so-called irrationality—the Wednesbury principle. There was no ability here to claim damages or an injunction for breach of a convention right.

However, “bringing rights home” here was to be achieved in a way that would ensure that the United Kingdom observed its international obligations as a member of the Council of Europe. There was to be a high degree of alignment between domestic law and the convention, and no major gaps. That is what has been achieved by Sections 3 and 4.

I am afraid that I do not agree with the analysis of the noble Lord, Lord Sandhurst, in his criticisms of either Ghaidan or indeed Section 2. That section says that the courts, when considering a convention issue, are to take Strasbourg into account. This has served to our advantage to enable what the noble Baroness, Lady Chakrabarti, described as judicial dialogue, which has worked in our favour in cases where Strasbourg has failed to appreciate particular features of our own domestic courts and has then subsequently changed its jurisprudence.

As regards interpreting our provisions consistently so far as possible with the conventions concerned, it has always been open to the Government—and it is still open to the Government in any case, always—to put through Parliament legislation overturning decisions that they do not like.

Finally, and most importantly, parliamentary sovereignty was to be retained and reinforced. That is the effect of Section 4 of the 1998 Act, which provides for the courts a discretion to make a declaration of incompatibility but not to strike down or render invalid a piece of legislation.

At the end of the day, I would simply say that, as Sir Peter Gross said, having received 150 written submissions and held numerous meetings across the country, very little is wrong with this legislation. Anything that is found to be wrong can be corrected. The proposed new Bill of Rights is not moving forward; unfortunately, it will be moving, retrogradely, backwards.