The great flaw in the Human Rights Act

Our new government’s most closely-held commitment is to the primacy of human rights law. Shortly after taking office, Keir Starmer vowed that under his leadership the UK will ‘never’ leave the European Convention on Human Rights (ECHR). Last month, the Attorney General, Lord Hermer KC, undertook ‘to counter the false choice, offered by some, between parliamentary democracy and fundamental rights.’ Fair enough, save that Lord Hermer has confused protection of fundamental rights with judicial application of the Human Rights Act 1998 (HRA). 

It is true and important that Parliament enacted the HRA and has not yet repealed it. But it does not follow that judicial enforcement of that Act is the ‘vindication’ of democracy, as Lord Hermer put it. The HRA arms British judges to question the merits of legislation and policy on uncertain grounds, systematically undermining legal certainty and, worse, disabling parliamentarians and the public from deciding freely how we should be governed.