The trouble with the Human Rights Act

The Human Rights Act (HRA), which is twenty-five years old today, has always been controversial. It unsettles the balance of the constitution, enabling judges, and lawyers, to attack policy and legislation in a way that is anathema to our constitutional tradition. 

Introduced under Tony Blair in 1998, the HRA was intended to help guarantee basic human rights. This was a noble objective, but it does not follow that the Act was a good idea. While securing the rights of others is a fundamental object of government, the act’s main problem is that it disables parliamentarians, and the public, from responsible action, putting parliamentary democracy and the rule of law in doubt.

The HRA’s tension with fundamental constitutional principle is easy to see. Consider section 3, which provides that legislation is to be read compatibly with Convention rights whenever possible. This provision has not simply been read as a presumption about Parliament’s intentions, but as a judicial power to rewrite legislation.