It is no secret that the UK Government has for a long time wanted to rein in the Human Rights Act. The SNP have been hoping for ages that London’s plans in this regard would be radical – there is nothing the nationalists love more than a new constitutional grievance to foment. Best of all words, from the SNP’s point of view, would be a commitment to withdraw the UK from the European Convention on Human Rights (ECHR) altogether.

How disappointed they must feel, therefore, that when the UK Government’s plans were finally published last week there was no pledge to withdraw from the ECHR and the plans to reform and revise the Human Rights Act were so modest they barely caused a media ripple.

It was the Blair government that introduced the Human Rights Act, in 1998. The Act is fundamental to the way in which human rights and civil liberties are now protected in the legal systems of the UK. In short, the Human Rights Act gives what lawyers call domestic legal effect to the ECHR. In plain English, this means you don’t have to go all the way to the European Court of Human Rights in Strasbourg to have your rights enforced and protected: your local employment tribunal or, failing that, the Court of Session will do just fine.

It is now more than 20 years since the Human Rights Act came into force. There is no doubt it has made the legal protection of human rights stronger in Britain. As such, it is a jolly good thing. But the Act is not perfect – show me the legislation which is! – and, like any other enactment, it is capable of being improved.

Its chief imperfection is that it has upset the delicate balance we have in our constitution between the courts on the one hand and parliamentary government on the other. Yes, it is for the courts to enforce individual rights. But, equally, it is for parliament and government to set public policy. This could not be more important in a democracy. We do not and should not elect our judges but we should always be able to hold to account those who decide questions of policy.

Human rights are rarely absolute. Most give way when compelling reasons of public policy so dictate. Our right to privacy, for example, is no trump card. It must give way when the public interest so requires. Our right to liberty is not absolute. If it can be shown to be necessary to limit it for the sake of the greater good, so be it. (Consider lockdown as an example – that was a monstrous interference with our basic liberties but, at the time, it was plainly necessary in the public interest.)

Who should determine when the public interest requires that individual rights and liberties are curtailed in this way? The British answer always used to be: Parliament. Parliament decided. Since the Human Rights Act, however, the answer in our law is that this decision is now effectively shared between Parliament (whom we elect to do this sort of thing for us) and the courts. Under the Human Rights Act the courts can – and do – quash decisions made by ministers or by parliaments when they consider them to be what lawyers call a “disproportionate” interference with fundamental rights.

By and large, this sharing of decision-making between Parliament and the courts has worked well. But there are ways in which it could usefully be tweaked – improved – and these tweaks are what the UK Government is proposing in its plans to reform the Human Rights Act. Most of these tweaks are technical, but they are none the less important.

The first tweak will empower our domestic courts to make their own decisions, freed from the requirement always to seek to operate in Strasbourg’s shadow. The last judicial word on what Britain’s human rights laws require should rest with the UK Supreme Court, and not with the European Court of Human Rights in Strasbourg.

The second tweak will empower our courts more liberally to declare that legislation made in the UK is incompatible with human rights. At the moment, courts have a choice as to whether to make such a declaration or whether to reinterpret legislation – to rewrite it – to make it rights-compliant. This can lead to courts pretending that Parliament really meant x even if the law plainly says y. This can be problematic. It should be for Parliament to lay down the law and for the courts to interpret it, not for the courts wilfully to reinterpret (or rewrite) Parliament’s laws just because they do not like them.

A third tweak – perhaps more than a tweak – is for our human rights laws to offer a more robust protection of free speech. No one in Scotland needs to be told how fragile our commitment to free speech has become in this country (just recall the Hate Crime Bill, for example), and the UK Government is absolutely correct to seek to want to strengthen this.

And a final tweak concerns trial by jury. Like free speech, this is under attack in Scotland, and we should think long and hard before succumbing to an assault on what is, after all, one of our oldest and most cherished freedoms. Last year the SNP tried to abolish trial by jury under emergency coronavirus laws, but they were thwarted by Holyrood. Since the election, fresh attacks have been launched, not least on the use of jury trials in cases relating to sexual offences.

None of this will set the heather alight. But this is as it should be. Constitutional reform does not have to be front-page news to be worthwhile. Indeed, it may be all the more effective when it isn’t so newsworthy. Lessons there not only for human rights law, but also for other aspects of our constitution, you might think.

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