Issue 51 November 2010 - The Human Rights Act 10 Years On

 

This article is based on a paper presented at the NIHR Conference, “The Future of Human Rights in Th UK”, September, 2010. Professor Klug is a Senior Research Associate at the Centre for the Study of Human Rights, London School of Economics - link

Who could disagree with the renowned and brave Northern Ireland High Court Judge, Seamus Treacy, when he said recently: “Some of the most significant legal challenges of the last 30 years or so have come from Northern Ireland and through these cases a rich tradition of promoting and vindicating fundamental rights has emerged.” As he said, “long before the passing of the HRA a trail was being blazed here in Northern Ireland in the deployment of the Convention to confront abuses of State power”.¹ Would incorporation of the European Convention on Human Rights (“ECHR”) into UK law have materialised had not so many brave men and women from different sections of the community - and their lawyers - stood up for their rights in some of the most difficult circumstances many of us can imagine?

Like the origin of the species, the HRA’s precise evolutionary history is open to some debate. Iwould trace its gestation to1968, a time when the sometimes authoritarian chickens of the British Parliament came home to roost. The 1968 Commonwealth Immigrants Act was passed by a panicky Parliament, led by a Labour Government, in three days. Its sole purpose was to deny British Asians expelled from East Africa entry to the UK, at the precise moment when they sought to rely on their UK citizen status to protect them. A slumbering consciousness began to stir. Some liberal (with a small and large ‘l’) commentators and academics started to debate in earnest whether the famed UK doctrine of parliamentary sovereignty, under which Acts of Parliament were safe from judicial scrutiny, could ever adequately protect minorities whose voting power would forever be minimal; in so far as it existed at all. Renowned lawyers like Anthony Lester and John MacDonald produced pamphlets calling for a Bill of Rights for the UK.²

In 1974 this nascent debate took a further leap when Sir Leslie Scarman, the esteemed judge and subsequent law lord, chose to devote the first of his Hamlyn Lectures to the question of a Bill of Rights. In a famous passage harking back to the 1968 Immigrants Act he said: “When times are normal and fear is not stalking the land, English law sturdily protects the freedom of the individual…but when times are abnormally alive with fear and prejudice, the common law is at a disadvantage; it cannot resist the will…of parliament.”³

In the light of the Tory Party’s recent manifesto commitment to scrap the HRA, it is interesting to note that it was the Society of Conservative Lawyers (“SCL”) who were amongst the first to link this call for a Bill of Rights with incorporation of the ECHR into UK law which Britain ratified in 1951. The SCL recommended in their 1976 report “Another Bill of Rights?” that, “the ECHR should be given statutory force as an over-riding domestic law”.

Although inspired by the Universal Declaration of Human Rights, promoted by Winston Churchill and largely drafted by UK lawyers, Britain was one of the few countries in Europe that had not incorporated the ECHR into domestic law - only the government was bound by its terms. Parliament, the courts and other public authorities were not.

Two years after the SCL report, the Tory Lord Chancellor, Lord Hailsham, pronounced that, “in this armoury of weapons against elective dictatorship”, which is how he famously described the then Labour Government,“a Bill of Rights, embodying and entrenching the European Convention, might well have a valuable...part to play”.⁴

In the 1980s, the next push came from the perceived failure of Parliament to brook virtually any challenge to a now Conservative Government which, on the basis of three elections on a minority vote, could bring in almost any measure it wished.

A legislature thoroughly dominated by the executive offered very little protection against a government determined to push through unpopular laws like the Poll Tax, or less unpopular, but in many eyes just as troubling, measures like the Public Order Act 1986, the Official Secrets Act 1989, successive Prevention of Terrorism Acts⁵ and the removal of the ancient right tosilence.⁶ Many of these measures were justified as a direct response to the threat of terrorism (from Northern Ireland, rather than Al Qaeda).

Although they sometimes strained to apply human rights principles like proportionality and necessity, judges in the higher courts found themselves increasingly embarrassed by the restrictions they faced when seeking to hold the executive to account. The decisions or actions of the government or other public bodies could only be overturned if illegal or beyond the range of responses open to a so-called “reasonable decision maker”. ⁷ Demonstrating that an interference with a fundamental human right is “proportionate” and “necessary” - the post-HRA test - requires a much higher level of justification than whether interference is merely “reasonable”. Sometimes it seemed as if public officials had to be so “irrational” as to be virtually certifiable before their decisions would be quashed. Pre-HRA, the courts were effectively barred from reviewing primary legislation altogether.

The frustration of the judiciary came to a head in the case of Smith in 1996 over the ban on gay men and women serving in the military. The late Lord Bingham, a trailblazer throughout his distinguished career and who was then Master of the Rolls, strongly signalled his regret that he could not ask whether this measure was “proportionate” or “necessary”; only whether it was “reasonable”.⁸

To the further embarrassment of our courts, the European Court of Human Rights (“ECtHR”),which overturned the ban when our courts didn’t, subtly damned the British constitutional system for effectively excluding any consideration of the human rights of the sacked personnel.⁹ The formation of Charter 88, back in 1988, placed support for a Bill of Rights firmly on the political agenda. This elite, but growing, campaign provided the impetus for the HRA.

It dawned on many of us that this could be a “constitutional moment” and it was up to us to seize it. From this time on I was fortunate to have a ringside seat at the central developments, so what I say now is informed by direct experience as well as research and scholarship.

Twenty years ago the marriage between calls for a Bill of Rights and incorporation of the ECHR into UK law seemed as self-evident as that of David Cameron and Nick Clegg today. Although some pressure groups, including Liberty when I was director of their charitable trust, the Scottish Council for Civil Liberties and CAJ in Northern Ireland produced model bills of rights that went further than the ECHR (we called ours “The People’s Charter”), incorporation of a human rights treaty that the UK government was already bound by was generally agreed to be the simplest and most logical way to introduce a Bill of Rights in the modern world. (Canada and subsequently New Zealand did something broadly similar in basing their bills of rights on the International Covenant on Civil and Political Rights.¹⁰) This was especially the case when people were hardly marching in the streets demanding a Bill of Rights, although the situation in Northern Ireland was already seen as distinct, as eventually reflected in the commitment to a Bill of Rights for Northern Ireland in the Good Friday Agreement.

After Labour lost the fourth election in a row in 1992 the new leader, John Smith, committed the Labour Party to support what he called “a Bill of Rights”.¹¹ In a watershed speech on constitutional reform to Charter 88, Smith affirmed, like others before him, that “the quickest and simplest way” of introducing “a substantial package of human rights” would be to pass a Human Rights Act “incorporating into British law the European Convention on Human Rights”.¹² There was a fairly vague commitment to a second stage Bill of Rights which would go further than the ECHR and include social and economic rights (although to my recollection, even at  the best of times, there was precious little appetite for this beyond a very few of us, the CAJ’s proposed Bill of Rights being one exception¹³). In contemporary jargon, this second stage Billof Rights was to be unambiguously “HRA plus”.

When Tony Blair stood as leader of the Labour Party after John Smith’s untimely death in May 1994, he signalled continuity with his predecessor’s agenda by including support for a Bill of Rights in a candidate statement not over burdened with policies. This was part of a pledge by Blair for Labour to be the party of democratic renewal, alongside a commitment to “devolve power to the nations and regions of Britain” as he put it. This continuity with Smith on a Bill of Rights was important for Blair politically as, in most other ways, the birth of New Labour represented discontinuity with even the immediate past. Once in power, Labour proceeded swiftly to introduce the HRA chiefly, as former Justice Secretary Jack Straw has subsequently acknowledged, because the proposed model was already largely crafted in opposition, not least because of the input of Liberty and others.

But from this time onwards, as with so many other measures, ministers presented contrasting purposes for the Act.

A triangulated message in which the HRA was simultaneously presented as both a radical departure and a technical tidying up exercise, depending on the audience and the minister, seeped into the parliamentary debate and extra-parliamentary lectures and interviews which greeted the introduction of the HRA.

On the one hand, it was introduced to “bring rights home” in the well worn phrase and title of the White Paper which ushered it in¹⁴ so that individuals could claim the ECHR rights they were entitled to in the domestic courts.

On the other hand, the intentions behind the Act were apparently far more ambitious and fundamental. The Late Lord Williams, speaking as a Home Office Minister in the House of Lords debate on the HRA, specifically contradicted the “bringing rights home” mantra when he said: “[This] is not, as the Lord Chancellor pointed out, simply ‘you will be able to get your rights enforced quickly and cheaply because you will not have to make the journey to Strasbourg’. It is much more important than that. Every public authority will know that its behaviour, its structure, its conclusions and its executive actions will be subject to this culture.”¹⁵

The then Home Secretary, Jack Straw, described it as “the first major bill on human rights for more than 300 years”¹⁶ and “the first Bill of Rights this country has seen for three centuries”.¹⁷ This was then a fairly standard description of the HRA including by the eminent judge Lord Steyn,¹⁸ the New York Times¹⁹ and legal academics.²⁰

But if the political rhetoric as to the HRA’s purpose was deliberately ambiguous - the better to court different audiences - the model adopted was, I would suggest, much clearer as to the intentions behind the Act:

1) The primary purpose was not the technical incorporation of a human rights treaty, but the adoption of the rights in the ECHR as the basis for a UK Bill of Rights, in response to years of lobbying for such a measure (HRAs.2).

2) Almost without precedence in UK domestic law, the HRA would be a “higher law” whose broad principles would set the parameters of all other legislation and policy - past, present and future - except where Parliament explicitly,or by strong implication, had contrary intentions (HRAs.3).

3) With no judicial strike-down power in relation to Westminster statutes [in contrast to the Scottish Parliament and Northern Ireland Assembly], the model was intended - for better or worse - to only alter, but not overturn, the doctrine of parliamentary sovereignty, which there was no consensus to erase. Nevertheless the transparency and accountability of all organs of the State would be enhanced and the courts empowered to hold the executive to account where they were impeded from doing so before (HRAss.4, 6 and 19).

I want to be absolutely clear about this: there was never any intention to require our courts to slavishly follow Strasbourg jurisprudence. Regretfully, following the introduction of the Act, it was not just the tabloids, but some eminent judges, who suggested otherwise.²¹

In fact an amendment to the Human Rights Bill which would have bound the domestic courts to follow Strasbourg case law was proposed by the Conservative Opposition but emphatically rejected by the government.²²

Justice Laws summed up the intentions behind the HRA correctly, in my view, when he said in 2002: “[T]he court’s task under the HRA…is not simply to add on the Strasbourg learning to the corpus of English law, as if it were a compulsory adjunct taken from an alien source, but to develop a municipal law of human rights…case by case, taking account of the Strasbourg jurisprudence as s.2 [of the]HRA enjoins us to do.”²³

Similarly, the legal scholar, Andrew Clapham, in his essay on the ECHR in British courts, suggested that: “[T]he challenge is to ensure that national courts treat International human rights as part of the national heritage and interpret them in the national context to give them the appropriate maximum protection at the national level.”²⁴

When critics complain that the HRA has not provided protection in some important cases where the ECtHR has had to step in, e.g. on the retention of the DNA of innocent suspects²⁵ or the use of anti-terrorism legislation to search peaceful protesters,²⁶ they seem to miss the point of the adopted model. One of the purposes of the HRA is to require the domestic courts to “take into account” this case law in subsequent similar fact cases, which they either could not, or would not, do in most cases prior to the HRA.

In terms of impact, the HRA has elicited a wide range of responses of course, many of which are completely irreconcilable with each other. For some, the HRA is a wolf masquerading as a sheep. For others, it is a sheep masquerading as a wolf. Depending who you believe it has either tied the hands of the police and Home Secretary or has provided no protection at all against the most authoritarian government since the war.

A recent study of the impact of the HRA in Northern Ireland by Dr Ronagh McQuigg (legal academic at Queen’s University Belfast)²⁷ suggests that the repeal of the HRA would have as significant an effect in NI as anywhere else on these islands.

In the early years of the HRA there were on average 50 cases per year in which it was cited, compared to two cases per year in which the ECHR was cited before the Act came into force. In the last three years, whilst there has been a drop in the number of HRA cases, its impact on the outcome has more than doubled, from 9 per cent to 22 per cent.²⁸

In one example, concerning a child who was placed under an Emergency Protection Order and taken away from her parents, who were then prevented from applying to discharge the Order for 72 hours, the NI High Court found this to be incompatible with the right to a fair trial and to a family life.²⁹ Although in contrast to Westminster statutes such “Orders inCouncil”³⁰ can be “struck down”³¹ by the courts if found incompatible with the HRA, in this case only a Declaration was sought.³² The section was then repealed by the NI Assembly.

As Justice Treacy said recently at the West Belfast Festival: “Prior to the HRA the scope for raising Convention based challenges before domestic Courts was limited” but one practical consequence of the HRA is that, “the range, complexity and sophistication of the arguments deployed in cases has vastly increased”. He concludes that: “This sophisticated legal frame work means that there is no alleged abuse of human rights which is not now reviewable by an independent court with rights of appeal and ultimate recourse to Strasbourg if necessary.”³³

Of course, it is possible to draft aBillof Rights that builds on the HRA and is stronger in enforcement powers and broader in scope. This is what we did in Liberty 20 years ago when we drafted “A People’s Charter” and what the NIHRC recommended to the Northern Ireland Office in December2008for a Bill of Rights for NI.³⁴ But, as most of the pressure for a “British Bill of Rights and Responsibilities” comes from those who wish to repeal the HRA because they view it as too effective,³⁵ is it realistic to suggest its replacement will be stronger, not weaker?

The coalition government have committed to establishing a “Commission to investigate the creation of a British or UK Bill of Rights” (both terms have been used, depending on the document) due to commence some time next year.³⁶

Although the Liberal Democrats have always been the party that has most consistently championed the HRA - before and after its introduction - the carefully-worded pledge is to build on the ECHR, not the HRA, which, as I have suggested, was crafted to incorporate the rights in the ECHR in a particular way. Whilst, in theory, it would be possible to introduce a Bill of Rights with a stronger enforcement mechanism, the Conservative party’s stated intention before the election was to introduce a British Bill of Rights with a weaker enforcement mechanism than the HRA, whilst still incorporating most of the rights in the ECHR(with commitments to “rebalancing” power from the judiciary to parliament, in spite of the retention of parliamentary sovereignty by the HRA).³⁷

The details of the Commission remain unclear, but although it has been put on the back burner, we should not be complacent that the heat has been turned down altogether.

If the intention is to introduce a Bill of Rights which is better understood and “owned” than the HRA, then the approach you modelled in Northern Ireland over 10 years of consultation, engagement and debate points the way. If the intention is to build on and strengthen the HRA rather than replace it, then there is one off the peg to consider - the proposed Bill of Rights for Northern Ireland.38 The important test of any future Bill of Rights, especially one designated “British” or “UK” is, who gains?

When we consider some of the groups who have gained the most from the HRA - asylum seekers, foreign nationals, Travellers, terrorist suspects, prisoners (the very groups that have so tarnished the image of the HRA in the view of most of the tabloids) - they have relied on the values of universal human rights to protect them. They generally have nothing else. Would they receive the same level of basic protection under a Bill of Rights badged not as human but as UK or British? Maybe - for some - that is the whole point.

References

1Hon.Mr Justice Seamus Treacy, “The Role of Lawyers and the Courts in Defending and Upholding Human Rights”,Feile anPhobail, August 3, 2010.

2 Anthony Lester, “Democracy and Individual Rights”, Fabian Society, 1968; John MacDonald, “Bill of Rights”, LiberalParty, 1969.

3 Sir Leslie Scarman, “English Law—the New Dimension”, HamlynLectures, 1974.

4The Dilemma of Democracy, Colins,1978.

5 1984; 1989.

6 Criminal Justice and Public Order Act 1994.

7 Under the so-called doctrine of Wednesbury unreasonableness.

8 RvMinistry of Defence ex p. Smith [1996] 1AllE.R. 257.

9 Smith v Grady vUK[1999] I.R.L.R. 734.

10 The Canadian Charter of Rights and Freedoms 1982 and New Zealand Bill of Rights 1990, respectively.

11“A New Way Forward”,Speech by John Smith, Leader of the Labour Party, Bournemouth, February 7, 1993.

12 A Citizen’s Democracy,Charter 88, March 1993.

13 “A Bill of Rights for Northern Ireland”,CAJ, 1990.

14 “Our aim is a straight forward one. It is to make more directly accessible the rights which the British people already enjoy under the Convention”. Rights Brought Home,White Paper, para.1.19, October 1997.

15 582HLAT1308. My emphasis.

16 306HC769, February 16, 1998.

17 Speech, IPPR, January 13, 2000.

18 “[T]he Human Rights Act 1998 which is our Bill of Rights”. “Democracy, the Rule of Law and the Role of Judges” [2006]EHRLR243 at p.246.

19 “Britain Quietly Says it’s Time to Adopt a Bill of Rights”, New York Times, October 3, 1999.

20 Keith Ewing,“The Human Rights Act and Parliamentary Democracy” [1999] 62 Modern Law Review 79.

21 R(Alconbury) v Secretary of State for Environment, Transport and the Regions [2001] UKHL23; R(Anderson) v Secretary of State for the Home Department [2002] UKHL 46; R (Ullah) v Secretary of State for the Home Department [2004]UKHL26.

22 484HL1270, 1 (January 19, 1998).

23 Runa Begumv Tower Hamlets [2002] 2AllE.R. 668 para.17 (my emphasis). He likewise said, “the English court is not a Strasbourg surrogate…our duty is to develop, by the common law’s incremental method, a coherent and principled domestic law of human rights,” R(Pro-lifeAlliance) v BBC [2002] 2 AllE.R.668.

24 In Promoting Human Rights through Bills of Rights, OUP, 1999, pp.134–135.

25 Marper v UK, ECtHR Grand Chamber, December 4, 2008.

26 Gillan and Quinton v UK,ECtHR, January 12, 2010.

27 Ronagh McQuigg, “A ‘very limited’ effectora ‘seismic’ impact? A study of the impact of the Human Rights Act 1998 on the courts of Northern Ireland”, (2010) Public Law 550.

28 During the first three years of the HRA, the success rate of human rights arguments was 14 out of 149 cases, or 9 per cent. The success rate of human rights arguments in the last three years (October 2006–October 2009) was 25 out of 112 cases, or 22 per cent.

29 Article 64(8). ES’s Application for Judicial Review(2007).The section was later repealed by the Children (Emergency Protection Orders) Act (Northern Ireland) 2007.

30 Made under the Northern Ireland Act 1974, the Northern Ireland Act 1998 or the Northern Ireland Act 2000. Orders in Council are characterised by Westminster as subordinate legislation.

31 In ReKing’s Application (2002) the NI Court of Appeal explicitly held that because the legislation inquestion (the Life Sentences(NI)Order2001) was subordinate legislation, no declaration of incompatibility could be made under s.4 HRA. Instead the court interpreted the provision compatibly with the HRA under s.3. However, the Court of Appeal said that i thad “power to declare that this subordinate legislation is unlawful if it is not compatible with a Convention right and thus to ‘strike it down’”.

32 Similarly, a provision of an Act passed by the NI Assembly could also be overturned by the courts if it is found to be incompatible with a Convention right. Northern Ireland Act 1998 s.6(1) and s.6(2)(c): s.6.—(1) A provision of an Act is not law if it is outside the legislative competence of the Assembly. (2) A provision is outside that competence if any of the following paragraphs apply - ... (c) it is incompatible with any of the Convention rights. s.98: “the Convention rights” has the same meaning as in the Human Rights Act 1998.

33 See fn.1.

34 “A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland”, NIHRC, December 10, 2008.

35 “Cameron restates opposition to Human Rights Act”, Press Association, June 2, 2010. See also Francesca Klug, “Solidity or Wind? What’s on the Menu in the Bill of Rights Debate?”, (2009) 80(3)ThePoliticalQuarterly 420–426.

36 “The Coalition: our programme for government”, HM Government, May 2010: “We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights,ensures that these rights continue to been shrined in British law,and protects and extends British liberties.We will seek to promote a better understanding of the true scope and understanding of these obligations and liberties.”

37 “We should also look at restoring a better balance between Parliament and the courts”: Dominic Grieve, “It’s the interpretation of theHuman Rights Act that’s the problem - not the ECHR itself”, Conservative Home’s Platform, April 14, 2009.

38 “A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland”, NIHRC, December 10, 2008.