European Convention on Human Rights: 75th Anniversary

Lord Trevethin and Oaksey Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, it is a pleasure to follow the noble Lord. I wish to say a few words about the relationship between judicial protection of human rights and the rule of law and, in particular, about the way in which Parliament should respond to declarations of incompatibility in cases of constitutional importance.

In his classic work on The Rule of Law, Lord Bingham identified important distinctions between what one might call the primary articles, which confer an unqualified right to a defined outcome—not to be tortured and a right to a fair trial—and articles such as Article 8. Article 8 guarantees not a defined outcome but a respect for private and family life. It is subject to an important qualification, which Lord Bingham calls

“a community exception, a recognition that the rights of the individual may properly be restricted, in the interests of the community at large, if certain … conditions are satisfied”.

When judges are asked to give effect to and protect qualified rights, such as those conferred by Article 8, they are being asked to make an evaluation of the relevant, competing considerations, which necessarily involves moral and political analysis.

The danger is obvious. It is highlighted by a different chapter in Lord Bingham’s book, entitled “Law not Discretion”. There, he wrote:

“Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion”.


The balance is held, or should be held, by the fundamental constitutional principle that Parliament is sovereign. The Human Rights Act was carefully drafted in a way that reflects this. Judges are not able to strike down Acts of Parliament. Senior judges can make declarations of incompatibility. In most such cases, Parliament properly reacts by amending the legislation in question, in accordance with the court’s judgment. It is not obliged to do so and has not always done so.

As a matter of procedure, following the making of a declaration of incompatibility, Section 10 of the Act permits the Government to amend legislation by a remedial order, which will normally go through on the nod. The Act states, importantly, that this form of fast-track amendment is permissible only where the Minister considers that there are

“compelling reasons for proceeding under this section”.

I turn to a current matter, in which the Government propose to make a remedial order of this nature. In short summary, a few years ago the Supreme Court held in the Adams case that Mr Adams’s internment in the 1970s had been unlawful because the relevant certificate had been signed by the wrong Minister. This rather technical point, taken over 40 years late, opened an unappealing vista of many thousands of claims for compensation. A provision was introduced into the legacy Act with the support of all major parties, which—put colloquially—neutralised the Adams decision.

In 2024, a single judge of the Northern Ireland High Court made a declaration that this provision was incompatible with the claimant’s rights. That decision may have been right; it may well have been wrong. It has been the subject of penetrating—some might think lethal—criticism in a Policy Exchange paper written by Professor Ekins and Stephen Laws. The noble and learned Lord, Lord Hope, provided an illuminating preface, in which he supported the views expressed and explained precisely why it was inappropriate to respond to the declaration of incompatibility by making a remedial order pursuant to Section 10.

The Government appealed the Northern Ireland decision. It is beyond question that that appeal raised issues of fundamental constitutional importance. In summer 2024, the new Government withdrew the appeal. The reasons for that decision are obscure. Now it is proposed that a remedial order be made whose effect will be to remove the neutralising provision. As I have explained, this can lawfully be done only if there is a compelling reason to use the Section 10 fast-track procedure. There is plainly no such compelling reason. On the contrary, there are compelling reasons why the primary legislation should be amended in the usual way, which will give Parliament the opportunity to consider the matter carefully, as clearly needs to happen. If the Minister were able to update the House as to the Government’s plans in this respect, that would be of great interest.