BBC journalists have demonstrated yet again that they have no idea as to how the Human Rights Act 1998 (HRA 1998) works. Reporting on the UK Supreme Court ruling last year that sex offenders have the “human right” to apply to have their names taken off the Sex Offenders register, BBC Breakfast News said that the government “absolutely have to do what the Supreme Court tells them” (16th February 2011). M’Lord Prescott spouted similar nonsense last week on the issue of giving prisoners the right to vote in elections. According to him, the British people had surrendered the right to decide on such matters to the European Court of Human Rights when their representatives enacted the HRA 1998.
This is simply not what the HRA 1998 says. The Supreme Court can only invalidate secondary legislation. They cannot invalidate primary legislation (Acts of Parliament) and they have no power to compel government or Parliament to enact primary legislation in any particular form or at all. That is the law.
When an unnamed government source says: “We have no choice but to implement the Supreme Court judgement. There is no right of appeal” (http://www.bbc.co.uk/news/uk-12476979) s/he misses the point. Of course there is no appeal; there does not need to be. Once a declaration of incompatibility is made the government of the day is given a choice protected by the Human Rights Act 1998: amend the relevant lehislation (which remains in force pending any such amendment) or leave it alone. They have the final word and need to exercise their judgment, not appeal to anyone else.
This was the point missed by M’Lord Prescott as well when he was speaking about the divided and ill-advised judgement of the European Court of Human Rights (ECtHR) on prisoner’s rights. The HRA requires home courts to take account of the views of the ECtHR but not necessarily to follow those views. I took account of the views of Lord Prescott before deciding that he was obviously unaware of the terms of the legislation, which left me free to ignore him. In the same way, a court is not bound to follow an ECtHR judgment if that Court is satisfied that the ECtHR is wrong.
Parliament, acting in its legislative capacity, is specifically excluded from the ambit of the HRA 1998. That, too, is what the law says.
The day when an unelected, unrepresentative and unaccountable set of judges in London or Strasbourg can dictate to the elected, sovereign Parliament at Westminster will be the day that we finally kiss goodbye to democracy and embrace kritarchy.
Ironoically, the perpetuation of this sort of myth about the Human Rights Act 1998 simply strengthens the arm of those who call for it to be repealed.
David Radlett is a lecturer in law at Kent Law School