Wednesday, 4 June 2014

Human Rights and the Labour Party

The Human Rights Act 1998 section 2 places on courts a requirement to "take into account" decisions of the European Court of Human Rights.  Lord Bingham in Ullah v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, said: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”  This is the so-called "mirror principle" and I have argued that, on the whole, it makes good sense - (for example post of 3rd December 2013). 

In an article published by The Telegraph, Mr Sadiq Khan (Shadow Justice Secretary) indicates the Labour Party's support for the European Convention on Human Rights and the Human Rights Act.  However, Mr Khan goes on to suggest that a future Labour government would issue "guidance" to the judiciary about how they should apply section 2 of the Human Rights Act.  Mr Khan, significantly, does not rule out legislation but would clearly prefer the proposed guidance to work.

Whilst Mr Khan's article is refreshing in its support for human rights, the idea of guidance on interpretation is both constitutionally objectionable and unnecessary.  Objectionable because the judiciary apply the law as they find it and not as directed by the executive.  The "separation of powers" demands no less.  It is unnecessary because the judiciary has already recognised that the mirror principle is not absolute - (see Thoughts on Chester and McGeogh).  In any event, it is always open to Parliament to legislate and this includes amending the Human Rights Act 1998.

For articles on Mr Khan's proposals see Mark Elliott in Public Law for Everyone 3rd June 2014; Carl Gardner (Head of Legal blog) 4th June - Sadiq Khan: let me guide you where I think you're going ; Adam Wagner UK Human Rights Blog 5th June.  There is also an interesting further viewpoint from the London School of Economics.


  1. I think Mr Khan wants to limit Labour's investment in Human Rights to lip-service only. He and quite a few other Labour MPs do not seem to understand that they are there to give us an alternative option to the Tories, not Tory reserves.

    I also think that Human Rights in this country has been so watered down and undermined by right-wing political interference that it's becoming an illusion only.

    1. Thank you for this. Carl Gardner on his Head of Legal blog offers his view on precisely your point. Please see the link which I have added to the post above.