In defence of the Human Rights Act

After 7 May, the protection of human rights in the UK could fundamentally change.

This hasn’t been high on the election agenda, and that may in itself be a reflection of the failure of supporters of the Human Rights Act (HRA) to persuade the wider public to take it to heart. If the Conservatives have a majority after the election, they will bring an end to the era of the HRA.

The Conservative proposals, memorably described as ‘legally illiterate’ by Liberty and ‘half-baked’ by Dominic Grieve when first mooted in October 2014, are to introduce a bill of rights, after scrapping the Human Rights Act, and to ‘break the formal link’ with Strasbourg. The purported aim is to ensure that the UK Supreme Court is the ‘ultimate arbiter’ on human rights matters.

The plans reflect a perception of popular disenchantment with the Human Rights Act which is often claimed to give preference to groups unpopular with the majority such as immigrants, prisoners and Gypsy/Irish Travellers. Certainly it can be unpopular minority groups that are the ones in need of the most protection. But there are wider issues at stake: it is worth reflecting on the implications of scrapping a regime which has been embedded in UK domestic law for 15 years. The ramifications go beyond domestic law to impact on the UK’s international standing and the status of the Union itself.

On the international stage, the recognition and promotion of human rights is firmly part of diplomatic currency. The link between foreign policy and human rights is reflected in the manifestos of all the major parties, which exalt the importance of Britain’s role in promoting human rights around the world. Yet in proposing to ‘break the formal link’ to the European Court, the Conservatives plan to breach one of the UK’s international legal obligations (Article 46 of the Convention). This sits uncomfortably with the Conservatives’ manifesto assurances that they will stand up for the rule of law and human rights in countries like Zimbabwe. The message to those countries that they ought to be complying with international human rights treaties will carry less weight coming from a country that has breached its own obligations. If breaking the formal link with the European Court precipitates our exit from the Council of Europe, the UK will join Belarus as the only non-members on the continent.

Repealing the HRA could raise fresh uncertainties about the devolved settlement in the UK. The HRA is embedded in the Scotland Act 1998 and the Northern Ireland Good Friday agreement. In the context of fresh tensions between Scottish and English nationalisms stirred up in this election, the prospect of repealing the Scotland Act and introducing a bill of rights that will truly be embraced as ‘British’ seems unlikely.

If our system was truly not fit for purpose, these practical consequences shouldn’t necessarily deter us from attempting to change it. But there are genuine reasons to believe that the system works better than any of its proposed replacements.

Firstly the relationship between the UK Supreme Court and the Strasbourg court is more nuanced than the Conservatives imply. The Supreme Court is not bound to follow ECHR jurisprudence, but to have regard to it. Judges in both courts recognise that there is a dialogue between them, and where the UK gives a clear indication that they think Strasbourg has got it wrong, as they did in cases on hearsay evidence and whole life sentences, the European court has been prepared to review the issues. In the uncertainty that will be created if the HRA is repealed but the UK remains a signatory to the ECHR, and if there are any discrepancies between rights protected in the Convention and in any Bill of rights, more human rights cases will have to be taken to Strasbourg, with the perverse result that more decisions affecting the UK will be made there rather than by UK judges.
Secondly, there is now 15 years of jurisprudence in UK domestic courts, building up a body of case law applying the Convention principles to the British context. Perhaps anticipating with concern the sudden loss of that jurisprudence, UK judges have exhorted claimants to bring claims under the common law rather than the HRA. The two, however, have not developed in tandem, and there are significant gaps in the protection offered by the common law. In the context of civil liberties law, the HRA has provided significant avenues for redress for which there is no parallel protection. A few examples are:

• Article 5 Right to Liberty. This has been used to hold the police and prosecution to account where the claimant spent months on remand on suspicion of having a false document. The document was genuine but the authorities delayed in bringing this to the court’s attention. The claim could not be brought under the common law tort of false imprisonment because the detention was by lawful order of the court.
• Article 2 Right to Life. This imposes positive obligations on states including an investigative duty. This means that following a death in custody, bereaved families have a better chance at understanding the circumstances in which the death occurred and have a greater chance at holding them to account. Unlike the common law, it also imposes a duty on the police to take reasonable steps to protect life. In a recent Supreme Court case, the family of a mother who was fatally stabbed by her ex-partner after police failed to prioritise and respond promptly to her 999 calls was allowed to continue a claim under Article 2 but not in negligence, as the common law had not developed in tandem.
• Similarly Article 3 (the right to freedom from inhumane and degrading treatment) imposes an investigative duty which has been used to hold the police to account where police failings have resulted in people becoming victims of serious crime where this could have been prevented.
• Article 8 Right to private and family life. This is the right which mediates our relationship with state power as citizens. In civil liberties cases it has been used to ensure intrusions into our private lives have to be legitimate and proportionate. Article 8 has been successfully used to challenge retention of DNA and fingerprints, which would otherwise have been kept indefinitely regardless of whether you were ever prosecuted for a crime. It is now being used, at least partially successfully, to challenge mass internet surveillance by the government. The very flexibility of the provisions of Article 8 makes it fit for the purpose of mediating this relationship in the varied circumstances where intrusions occur, some hitherto unsuspected.

These are the developments through judicial decisions, but there is another, subtler way in which the HRA operates to enhance our protection. The requirement for public authorities to act compatibly with our convention rights means that consideration of the legitimacy and proportionality of the outcome should be incorporated into the decision making process itself. These changes in administrative processes should ensure that the right decisions are made in the first place. That isn’t always the case and the ability to challenge decisions is still needed to ensure accountability and compliance. But that is now embedded in the process because of the way the HRA works.

There is a further point about why it is quite odd for the Conservatives to want to repeal the HRA. The rhetoric around the influence of Strasbourg is cast in terms of an affront to parliamentary sovereignty. But what would a Bill of Rights do instead? If it works like the American Bill of Rights, effectively as a constitution, then that also usurps parliamentary sovereignty: the courts have the power to strike down unconstitutional legislation if it is incompatible with the Bill of Rights. This would be quite a radical new constitutional proposal for the Conservatives. And yet if the proposed Bill of Rights does not have this status, the question arises whether they are enforceable or merely theoretical rights.

Writing on the HRA, Conor Gearty (Professor of Human Rights Law at LSE) sees its strength in the fact it is not inoculated from later repeal: this means the political has supremacy over the legal, and therefore best reflects ‘the human rights mask the UK has chosen to wear’. However that means it is not enough to champion it in the legal sphere: it must be defended in the political one. May 7th is our opportunity.