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” ( 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


Thanks for contributing to our blog, David. It is good to have debates such as this one aired here and even better to have contributions from colleagues with such obvious expertise. Forgive me for being ever so slightly churlish on this occasion, but I think you are generalising a tad about BBC journalists and their understanding of the HRA.  If one journalist has over simplified one news report intended for a general audience, that is a point well worth making, but to suggest that the corporation's network news team is peopled by correspondents who do not understand the relationship between the HRA , the ECHR and the doctrine of parliamentary sovereignty is not fair. The BBC's corporate position on this is close to Vernon Bogdanor's  i.e. that sovereignty has been diluted, de facto if not de jure, by assorted innovations including the Scotland Act as well as the HRA. Parliament has not yet expressed its will emphatically on the subject - though last week's debate on votes for convicts sent a powerful and interesting shot across the executive's bow. When it does I shall share your desire for an emphatic restatement of the doctrine of parliamentary sovereignty as described by Bagehot  Hasten the day! But until then we should do the Beeb's best justice. Several of them understand very well. R4's World Tonight has done more than most to explore and explain this issue. Remember that reporters for Breakfast News are writing for a mass audience, not for academic journals with specialist readerships.   

...ministers are required to uphold treaty obligations, as Dominic Grieve said in the parliamentary debate last week. So the government can't really just 'leave alone' the legislation disenfranchising prisoners. Not without severe consequences anyway.

Having said that, the nature of those consequences is so uncertain that it often is easier to simply kick issues like prisoners' votes into the long grass. But not indefinitely.

I am as keen as you, David, to resist judicialisation, but we journalists must resist the absract and operate in the harsh arena of power politics and diplomacy. Parliament can, of course, defy the European Court of Human Rights. It can withdraw the UK from the European Convention and raise two fingers to Strasbourg as its archers once did at Agincourt. All true, but only in an abstract theoretical dimension in which democracies have no politics, no allies and no treaty obligations.  The real consequences of doing so might include an immmediate split in our governing coalition and international condemnation. We would be isolated in the EU, which requires member states to adhere to its values. These include respect for human rights as set out in the ECHR. We would be compared to Serbia under Milosevic or Greece under the colonels. Our denunciation of human rights abuses in Kosovo, Chechnya and China would be entirely undermined. We would stand accused of appalling hypocrisy. Is this a price worth paying to assert the sovereignty of parliament? I fear cherishing sovereignty is easier than exercising it.      

BBC talks rot about human rights