In December 2020 it was announced that Sir Peter Goss, a former Court of Appeal judge who retired last year, will lead a review into how the Human Rights Act 1998 (HRA) is interpreted in British courts.

This is not the first time that members of this government have presided over various promises to look again at the UK’s commitment to the European Convention on Human Rights, which the HRA makes directly applicable in law. This time, previous manifesto pledges to repeal the Act seem to have been replaced by a commitment to looking at how Convention rights are applied domestically.

In outlining the scope of the review, the government says that it is ‘committed to remaining a signatory’ to the European Convention and the rights it protects, but nevertheless it is now ‘timely’, given that the HRA has been in force for 20 years, to review its operation to ensure it ‘continues to meet the needs of the society it serves’.

While the review will not consider the scope of the substantive rights protected by the Convention it will be tasked specifically with looking at two broad themes: the relationship between domestic courts and the European Court of Human Rights (ECtHR) based in Strasbourg; and the impact of the HRA on the relationship between the judiciary, the executive and the legislature.

In particular, the government has said that the review will look at whether or not the courts, given their statutory duty to ‘take into account’ the jurisprudence of the ECtHR and to give effect to Convention rights in interpreting and applying legislation, are being ‘unduly drawn into questions of policy’, and whether or not the HRA strikes what might be regarded as the ‘correct balance’ between the roles of the government, Parliament and the courts. The review will also examine situations in which the HRA applies to acts of public authorities taking place outside the territory of the UK, and ultimately aims to assess whether any ‘reforms’ to the Act may be justified.

Which policy questions exactly are being referred to here is not stated explicitly, but may be inferred from the list of grievances which members and supporters of the government have raised periodically against the courts in applying the HRA. In particular it stands charged with preventing the deportation of ‘foreign-born criminals’ and placing onerous legal burdens on those in the armed services operating overseas. Leaving aside the accuracy of these claims, this choice of priorities is revealing.

The rhetorical question asked by Lord Bingham in his 2009 Liberty lecture, as to ‘which of these rights… would we wish to discard? Are any of them trivial, superfluous, unnecessary… un-British?’ needs to be turned on its head here. The objections one sometimes hears to the HRA do not, really, come from the belief that these rights are ‘un-British’, but rather from the belief that they should properly be the preserve only of British citizens (and then, only of certain British citizens, which we will come to shortly). On this view, those rights are for ‘us’, and only for ‘us’.

This shows where attempts to replace the HRA with a ‘British Bill of Rights’ under the stewardship of previous Lord Chancellors came unstuck. To say nothing of the legal complexities of how such a Bill would sit in our constitutional framework. One reported issue was the question of departing from the Convention’s universality and creating what amounted to a tiered system of rights: one set for ‘deserving’ British citizens; another, leaner set for the ‘undeserving’.

From the perspective of the law, who is worthy of relief or sanction, who ‘deserves’ to be punished or released, is not a given. It is something which must be established by a rigorous and impartial process. One of the ways in which the Convention recognises this is by enshrining, among other things, the right to a fair trial, and the right not to suffer legal punishment retroactively. This is always going to represent something of an irritation for those who have already decided for themselves who is and is not ‘deserving’ of the protection which the rule of law affords.

More than that, however, the very framework of human rights also presupposes that there are some fundamental rights which remain non-negotiable, regardless of a person’s situation. Even criminals who must submit to court orders, even prisoners who may have their freedoms curtailed in other ways, remain human beings, with certain rights which cannot be taken from them. Even someone about to be deported may insist upon their right to, for example, a family life, or not to suffer torture or the threat of death if they are returned to their former jurisdiction.

In other words, the very existence of human rights as a legal and political idea is based upon, and embodies, a system of valuing human life and dignity which transcends the other rights and privileges attaching to membership of a particular community. Under this scheme, there are certain rights which even a sovereign Parliament, which may imagine it is carrying out ‘the will of the people’ (however that is revealed), cannot abrogate.

This is what the government really means when it expresses a worry that judges who interpret and apply the Act are being ‘unduly drawn into areas of policy’: that the value of certain lives, specifically those of people not born in this country or who have breached its laws in some way, ought properly to be its domain, and the courts are felt to be trespassing on it.

By their actions in upholding people’s Convention rights under the HRA, the courts give the lie to the idea that the government can snap its fingers and declare that asylum seekers, or prisoners, or the victims of human rights violations committed by the British armed forces operating abroad, are simply nonpersons whose rights can be disregarded.

There is a view, held more or less openly by some among the government and its supporters, that all of this is a necessary and long overdue corrective. Judges have, they say, been encroaching steadily on questions which are more properly the domain of elected politicians, in a way that is democratically illegitimate and undermines the public’s confidence in their own institutions.

This is not a view I share. To paraphrase Lord Bingham in the 2004 Belmarsh judgment, while it is correct to observe that judges are not elected, this is not to say that the decisions made by judges are somehow undemocratic. Rather an independent judiciary, interpreting and applying the law passed by an elected Parliament, is ‘a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself’ ([2004] UKHL 56, para 42).

The government must not be negligent of this if, as it claims in the scope of this review, it aims to ‘champion’ human rights at home and abroad. The values enshrined in the Convention, the rights which our communities have fought hard to gain and which Parliament has obliged the courts to apply to their decisions, are there for everyone. Any review which does not take account of this, and the role which the Act plays in underpinning a truly democratic society, will fall at the first hurdle.