Human Rights Act 1998

Lord Sandhurst Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I welcome the chance to engage in this important debate on this important statute. I begin by declaring my interest as chair of research at the Society of Conservative Lawyers.

Experience of the Human Rights Act has revealed structural flaws that the Bill of Rights would go some way to remedying. Our time today is short, so I will focus on just three matters. The first is Section 2, which directs a court determining a question in connection with a convention right to “take into account” any judgment of the European Court of Human Rights. That has led to unfortunate results, with our courts sometimes doing more than just take account. As the noble and learned Lord, Lord Judge, said in a lecture in 2013, Section 2 should be amended to make it plain that in this jurisdiction, the United Kingdom, the Supreme Court is, at the very least, a court of equal standing. Thankfully, Clause 1 of the Bill of Rights addresses this.

Next, I turn to Section 3. Under this, our legislation must be interpreted as far as possible in a manner compatible with the convention. This displaced conventional approaches to statutory interpretation. The House of Lords in the case of Ghaidan made that worse. It held that this meant the court should adopt any possible interpretation of a statute to give effect in a way compatible with convention rights, even if “the interpretation is unreasonable”. That is extraordinary.

This has led to strained interpretation, unintended by Parliament. Then, because the provision in question has not been ruled incompatible, as it could have been under Section 4, it is not sent back to Parliament to address. This has taken away from Parliament decisions that are rightly for it. Such decisions often involve balancing exercises. Our parliamentarians, for better or worse, represent society. They are likely to have access to information—and better information than people arguing it in the courts—about the issues involved to balance what matters.

Let me explain. Policy is essentially for those who make the law. Policy choices have to be made between compensating individuals and protecting the budgets of public services. Of its nature, a balancing exercise presupposes a situation in which the factors are not all one way. A stark example is the case of Quila, decided in 2011. In 2008, the Home Secretary changed the Immigration Rules to deter forced marriages. The change raised from 18 to 21 the minimum age of the person entitled to be granted the right to settle by reason of marriage.

The worthy aim was to deter forced marriages, but the Supreme Court found a violation of Article 8, the right to family life. It ruled that the interference with family life was not proportionate. One might feel, and I suggest, that there was scope for more than one view on this sensitive matter. The Home Secretary’s policy was supported by 50% of the respondents to a government consultation and by the largest NGO concerned with the evil of forced marriages. That was a matter for Parliament, not for second guessing.

Finally, Section 12 has given insufficient weight to freedom of expression. Incorporation into domestic law of the two qualified rights, Articles 8 and 10, gave direct domestic effect to Article 8, creating a right to privacy. That has protected the rich and powerful with insufficient weight given to the public interest in free speech.

Fortunately, under the Bill of Rights and the forthcoming Higher Education (Freedom of Speech) Bill, free speech will be given greater weight, but I should add as a footnote that the Online Safety Bill will wrongly create a serious threat to free speech. What we can legally say or write, we shall be stopped from putting online—a strange concept of “legal and harmful”.

Without leaving the convention, there is plenty to be done to improve its incorporation in domestic law.