Issue 33 August 2006 - A Commentary on Lord Falconer's Review of the Implementation of the Human Rights Act

Recent Criticisms of the Human Rights Act

The last few months have seen an increasing volume of criticisms levelled at the Human Rights Act ("The Act"). The red-top press has linked the Act to the police decisions to deliver chicken and chips to a criminal fugitive taking respite on a shed roof and to avoid publishing the photographs of criminals for fear of infringing their privacy rights. Lenient sentencing, paedophile parole, illegal immigration and an inability to deport criminals all seem to be the fault of a Human Rights Act vilified by recent press. The Act has also been criticised politically. John Reid is frequently critical of the judiciary's finding fault with anti-terrorist legislation. Tony Blair has labelled a High Court ruling that Afghans who hijacked a plane should be allowed to stay in Britain on human rights grounds as "an abuse of common sense" (this regardless of the fact the ruling would have been the same prior to the implementation of the Act). David Cameron has proposed a new "Bill of Rights" which would apparently exist in tandem with the UK's obligations under the European Convention of Human Rights (ECHR). Mr Cameron thinks that such a Bill would afford the UK a greater margin of appreciation in its implementation of ECHR law than it currently enjoys and "should protect the fundamental rights set out in the European Convention in clearer and more precise terms". However, many commentators have pointed out that introducing a dualist system and redrafting fundamental rights would simply create confusion as to what extent the new Bill differed in substance from the European Convention and which is to apply, considering that the UK would still be bound to its international treaty obligations under the ECHR.

More serious were the concerns voiced by the HM Chief Inspector of Probation in the Inquiry Report into the release of Anthony Rice, which suggested that human rights arguments had been contributory factors in the events leading up to the murder of Naomi Bryant.

As a response to the Chief Inspectors concerns and to public perception more generally Tony Blair commissioned the Lord Chancellor, Lord Falconer, to review the impact human rights law has had on UK law. The Lord Chancellor was asked to look at: whether there was a need for clearer cross-government guidance on the balance that needs to be struck by officials when making decisions with human rights implications, whether primary legislation is needed to amend the

Human Rights Act and how public confidence in the Human Rights Act and its operation could be improved.

The Rice Case

Lord Falconer's "Review of the Implementation of the Human Rights Act" was published in July. On the specific criticisms relating to the Rice case, Lord Falconer identified many errors leading to Rice's release and the inadequacy of his supervision. The report found that the Act had been misapplied due to undue focus upon the rights and entitlement of the individual at the expense of the protection of the public. The review points out that the authorities misinterpreted the Act. The review shows us that the authorities ought to have balanced the prisoner's rights against the restrictions which were proportionate given the risk of harm to the public such a prisoner presented. There also appeared to be little regard to the positive obligation the prison, parole and probation services were subject to in taking proper steps to protect the public from dangerous criminals.

The review perceives that the problem was not in the letter of the Act, but in the way it was used. Lord Falconer, in a separate speech to the Hansard Society said, "There is no human rights legislation which says Mr Rice should be free even if it meant that the consequence is risking the lives of others. That is a perversion of human rights. It completely undermines the basis of those laws."

Lord Falconer said the government needed to act urgently "to stop the Act becoming corrupted to produce perverse results. We need to take steps now to ensure that lawyers and public authorities do not misuse human rights or feel intimidated into focusing on the rights of the offender to the detriment of the public."

Counter-terrorism Legislation

Lord Falconer's report also finds that the Human Rights Act has had an impact on the government's counterterrorism legislation and that the "main difficulties" in this area arise not from the Act but from decisions of the European Court of Human Rights. Lord Falconer may have had in mind Mr Justice Sullivan's judgement in Secretary of State for the Home Department v JJ [2006] EWHC 1623 (Admin), in which the High Court in London quashed control orders made against six men under the Government's anti-terrorist legislation stating that the orders were incompatible with Art.5 of the European Convention on Human rights.

Six men, believed to be one British citizen and five Iraqis, had been placed under severe restrictions of liberty in line with the control orders. Control orders could be imposed on people suspected of involvement with terrorism without a court trial. Controlees could be restricted to their homes, have their associations with other people restricted, be forced to hand in their passports and be forced to give law enforcement officers unrestricted access to their homes. The orders can be imposed for up to 12 months and can be renewed indefinitely at the request of the Home Secretary. Mr Justice Sullivan found that; "The importance of protecting members of the public from the risk of terrorism is not in doubt, but the importance of that objective is not a reason for the court to be less inclined to classify the obligations in these control orders as a deprivation of, rather than a restriction upon, liberty. The [European] Convention [on Human Rights] makes express provision in Art. 15 for there to be a derogation from (inter alia) Art.5 "In time of war or other public emergency threatening the life of the nation". That facility is carried forward into the Act, which applies the mechanism of a "designated derogation" under s.14 of the 1998 Act: see s.l(10) of the Act and the procedures for making derogating control orders (above). In the absence of a derogation under Art.1S of the Convention the respondents are entitled to the full protection of Art.5, and there is no justification for any attempt to water down that protection in response to the threat of terrorism ... It follows that the (Home Secretary) had no power to make the orders and they must therefore all be quashed."

The decision means the Government has now suffered a double blow in its attempts to legislate to fight terror by the use of control orders. In April it was also found that the 2005 Prevention of Terrorism Act-under which control orders are made was "incompatible" with the European Convention on Human Rights because controlees had not received a fair hearing.

Lord Falconer's Review tells us that a 'dialogue' has been established between the English courts and the European Court of Human Rights which means that the English courts have paid close analytical attention to the Convention. Accordingly the English court decisions (and the review does only contemplate English decisions) are increasingly respected by Strasbourg's judges, which has resulted in fewer appeals against the UK appearing and being successful before the European Court of Human Rights. Put simply, the UK courts are doing the job they were instructed to do under the Human Rights Act in applying the legal principles found in the European Convention of Human Rights. This may indeed cause difficulties to government policy which is introduced by subordinate legislation and contrary to Convention principles. By doing so, the judiciary is fulfilling its constitutional position to the best of its ability under the Act, patrolling the limits of official action which may impugn our human rights whilst acting in accordance with primary legislation. That the judiciary causes our government difficulty in passing laws contrary to human rights law is merely fulfilling its prescribed role

Public Perception

The review also considered the impact of the Human Rights Act more generally and the myths and perceptions that have grown up around the Act. The review found that:

· decisions of the UK courts under the Human Rights Act have had no significant impact on criminal law, or on the government's ability to fight crime;

· the Human Rights Act has a significant but beneficial effect upon the development of central governmental policy;

· the Human Rights Act has at times been misunderstood by the public and has been misapplied by officials.

Lord Falconer's review has sounded a note of reason against a tide of political and media criticism of the Human Rights Act. His report makes clear that the problems perceived with the Human Rights Act lie not with the Act itself, but in its implementation by civil servants and public authorities which do not fully understand the requirements of the Act. This means that the public at large has misunderstood the implications of the Act which in turn 'has been fuelled by a number of damaging myths about human rights which have taken root in the popular imagination'. The report reminds us of the 2001 application made by Denis Nilsen to challenge a decision of the Prison Governor to deny him access to pornographic material. The case is now often cited as a leading example of human rights madness but did in fact fail at the first hurdle.

Lord Falconer reminds us that the Human Rights Act needs to be applied consistently and understood better by everyone; that the public sector need be better aware of the balance to be struck between individual liberty and the needs of the community and be better placed to take those tough decisions through adequate training. Accordingly the review makes the welcome proposals that:

·the Department for Constitutional Affairs (DCA) provides better and more consistent guidance and training on human rights within government departments, with specific reference to areas in which such guidance is currently lacking;

· the DCA revises and strengthens generic guidance on human rights for public sector managers, placing particular emphasis upon public safety arguments;

. the Government will lead a drive to ensure that the public as well as the wider public sector are better informed about the benefits which the Human Rights Act has given ordinary people and to debunk many of the myths which have grown up around the Convention rights.

With a co-ordinated approach to training civil servants to better assist them in making difficult human rights decisions the DCA should help dispel many of the myths surrounding the Human Rights Act. With a public better informed about the positive implications of human rights law we should hope for press coverage and a political dialogue less-inclined to ape ill-informed public sentiment. The Lord Chancellor's Review points in the right direction. It remains to be seen to what extent its findings will be contemplated and its recommendations followed.