Reforming human rights legislation to give priority consideration to domestic law could create uncertainty, a former Supreme Court justice has warned.
An independent review into the Human Rights Act recommended amending section 2 of the 1998 legislation, making UK statute and case law the first port of call when interpreting a convention right, before Strasbourg case law is taken into account.
‘By giving prior consideration to national law but continuing to take proper account of ECtHR [European Court of Human Rights] case law, it is designed to promote greater consistency in the application of section 2 by UK Courts and greater domestic political and public ownership of human rights, while giving full effect to the principle of subsidiarity and maintaining the beneficial equilibrium reached between UK Courts and the ECtHR,’ the Gross review states.
However, Lord Carnwath of Notting Hill, who sat on the Supreme Court bench for eight years, told the House of Commons justice select committee yesterday that he disagreed with the proposal. ‘They seem to be saying it would improve our feeling that the thing belongs to us if there was some sort of provision that says “Start off by looking at British law/common law, and then only if that’s not adequate go on to the convention”', he said.
‘If the convention is going to give you rights, and you bring yourself within those rights, you should be able to rely on them. I don’t see why you should be looking around for some other common law equivalent.’
Asked how the government’s proposals on section 2 could change the UK courts’ approach to Strasbourg case law, Lord Carnwath said: ‘I can’t predict, I’m afraid. Happily, I’m no longer there. If I was there, I would be very confused. We would go through a period where we would have hopeful advocates appearing in front of us, citing cases from all over the place. My own feeling is, one would eventually settle down and say, as these cases may go to Strasbourg, we’ve obviously got to keep in mind what they’re saying. I find it difficult to see how it’s meant to operate. I certainly think it’s not going to increase certainty, which is what the government seems to be saying.’
Lord Carnwath also told the committee he found plans to limit foreign national offenders’ ability to appeal deportation orders on human rights grounds ‘somewhat confusing’, pointing out that strict limitations on the courts' powers were introduced in 2014.