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Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford

Human rights law reform is in the air – and but for the pandemic would be commanding far more attention. On Tuesday Dominic Raab, the Lord Chancellor, set out his proposals to revise and replace the Human Rights Act 1998 with a Bill of Rights.

At the same time, the Government published the report of the Independent Human Rights Act Review, chaired by Sir Peter Gross, which – entirely predictably – recommended minor changes to the 1998 Act, but largely endorsed the status quo. (One member of the Review was willing to go much further, but the majority were not.)

Remarkably, the following day, the Supreme Court handed down two judgments which reform the way in which the 1998 Act is understood and applied in our courts.

The judgments have largely escaped public notice thus far, which is a pity. They deserve careful consideration because they address some major problems with the 1998 Act and frame the legal context in which the Government’s proposals need to be evaluated.

The first judgment, R (Elan Cane) v Home Secretary, concerned whether the Home Secretary was required to issue a non-gendered passport to a person who identified as non-gendered. If the European Court of Human Rights would not hold that the UK had such an obligation, could such an obligation on the Home Secretary nonetheless arise under the Human Rights Act?

The Supreme Court thus had to consider directly one of the two main questions that the Independent Human Rights Act Review was asked to consider, namely the relationship between domestic courts and the European Court of Human Rights.

Section 2 of the 1998 Act requires UK courts to “take into account” judgments of the Strasbourg Court and over the past 21 years (the 1998 Act came into force on 2 October 2000) domestic courts have taken different views about what this means.

Beginning in 2008, some British judges, including notably Lady Hale, began to understand themselves to be free to develop Convention rights in ways that go beyond how the Strasbourg Court understands them.

On this view, it was open to a UK court to conclude that the Government had acted unlawfully, or to find that an Act of Parliament was rights-incompatible, even when it was clear that the Strasbourg Court would not think the UK in breach of the European Convention on Human Rights (ECHR).

The judges in question rationalised this course of action on the grounds that the Convention rights set out in the Human Rights Act were domestic statutory rights; the Act did not simply transpose the UK’s obligations in international law.

This was unconvincing. The question should have been whether Parliament intended the Human Rights Act to be used to undermine statute and policy that the Strasbourg Court would think lawful. Merely to ask the question is to answer it.

In deciding if a state has breached the ECHR, the Strasbourg Court often recognises a “margin of appreciation” within which the state is free to decide how best to limit rights. Lady Hale and others reasoned that within the margin of appreciation, the UK courts should develop and apply their own understanding of Convention rights.

In a series of papers for Policy Exchange’s Judicial Power Project, my colleagues and I have argued that this is a fundamental mistake about what Parliament intended in enacting the 1998 Act. In going beyond Strasbourg, UK courts have been misapplying the Act and transforming it, without Parliament’s authority, into a kind of British Bill of Rights, thus gold-plating Strasbourg case law.

I made this point most recently (with John Larkin QC) in a submission to the Independent Human Rights Act Review, published on Saturday with a foreword by Lord Sumption. The Review (by majority) rejected the submission, reasoning that in our constitution the margin of appreciation had to be shared between courts, government and Parliament. This was a groundless claim.

Happily, a unanimous Supreme Court agrees, and has now firmly rejected the idea that UK courts may find a breach of Convention rights if the Strasbourg Court would not, which includes cases that fall within the margin of appreciation.

In its Wednesday judgment, the Supreme Court disapproves the 2008 judgment that began this line of reasoning, as well as one of the most high-profile subsequent cases. Lord Reed, giving judgment for the court, rather understates the extent to which his colleagues had been willing to go beyond Strasbourg, but his judgment firmly restates the understanding of the 1998 Act for which Policy Exchange’s Judicial Power Project has argued now for many years.

The interesting question is what happens next.

The Government’s proposal for a new Bill of Rights envisages section 2 of the 1998 Act being repealed, which might mean that the position Lord Reed has so recently affirmed may soon be set aside by legislation. Much turns on how any new Bill of Rights directs judges to interpret rights.

Without clear legislative direction, Parliament may risk inviting, or at least permitting, UK judges to go beyond Strasbourg and to create an additional layer of judge-made human rights law, at much cost to the rule of law and parliamentary democracy.

The second judgment handed down on Wednesday, Re McQuillan, addresses a narrow but very important point, which is whether and to what extent the Act applies retrospectively to events (including deaths) that took place before it came into force. This has been particularly important in the context of legacy cases arising out of the Northern Ireland Troubles.

After some initial confusion, by 2004 UK courts had concluded that the Act was not intended to apply retrospectively. Alas, this position was abandoned by a Supreme Court majority in 2011, which took a deeply confused Strasbourg judgment to require it to extend the Act’s application back in time.

Neither the temporal nor the territorial scope of the Human Rights Act should be settled by following the Strasbourg Court’s understanding of the scope of the ECHR. The question is what Parliament intended the Act’s scope to be. Again, Policy Exchange’s Judicial Power Project has been making this point, in submissions to Parliament and other papers, for many years. The Independent Human Rights Act Review seemed to see the problem and yet held back from recommending legislative action in response.

To its credit, the Supreme Court has now attempted to fix the problem, in relation to temporal scope (territorial scope was not in issue), with its latest judgment sharply limiting the extent to which the Act has retrospective effect.

The judgment is an important advance on the law as it stood until Wednesday, but remains somewhat confused insofar as it does not quite uphold Parliament’s decision in 1998 that the Act should not have retrospective effect. In forthcoming legislation on legacy cases or in a new Bill of Rights, if such is enacted, Parliament should go further and make quite clear that the Human Rights Act (or Bill of Rights) is not to have retrospective effect before October 2000.

The Supreme Court’s latest two judgments are a major step forward, correcting some of the excesses and misunderstandings of previous case law. In deliberating about how to revise or replace, or even whether to repeal without replacing, the 1998 Act, Government and Parliament will need to pay careful attention to these two judgments, as well as to the fluctuating, uncertain case law that has needed correction.

Parliament should consider legislating to secure the understanding the Court has now reached, and to prevent future courts abandoning it, and should take care, in making other changes to human rights law, not to lose what has only now been regained.