What’s Wrong with the Human Rights Act 1998?

Both the Law Society and the Bar Council have put their weight behind the Human Rights Act 1998 (HRA). Opinion in the profession has also largely been in favour of the Act. At the end of 2012, 96% of those that responded to a poll called for the Act’s retention. Against this background, it is perplexing to learn that there are discussions about repealing the Act. The effects of this move would have constitutional significance and so it is important for all who operate within the HRA framework, including the legal profession, to keep in mind the benefits and history of the Act.

Since the Act entered into force, the HRA has allowed individuals to enforce directly their rights in all courts and it requires public bodies to respect those rights. The HRA also contains a set of common standards which binds the devolved jurisdictions of the UK together within the Union.

As is well known, the rights contained in the Act are taken from the European Convention on Human Rights (ECHR) - a set of minimum standards of dignity, fairness and equality. The ECHR is part of a Churchillian vision to guarantee peace and security within Europe. That vision was given shape and substance by the ECHR’s principal drafter, David Maxwell-Fyfe. The ECHR was drafted immediately after the Second World War as an attempt to codify the best of the common law and British values, which had successfully sidestepped fascism and communism and all that flowed from those tyrannical and anti-democratic regimes. Maxwell-Fyfe went on to become a Conservative Home Secretary and then Lord Chancellor as Lord Kilmuir. The ECHR embodied his values. To all intents and purposes, it has also succeeded in maintaining peace and security across the Council of Europe.

There have been three reviews in to the efficacy of the HRA. Each of these has acknowledged that the HRA’s scheme and scope works. Not only are the rights that it contains a restrained catalogue of human rights, the HRA’s scheme builds upon the Sovereignty of Parliament and prevents courts from striking down an Act of Parliament. It is a fundamentally conservative scheme. As Lord Bingham once observed, which of the rights in the HRA would you take out? Despite this, there are calls from certain key players from within the Conservative Party to repeal the HRA.

The Conservatives propose to replace the HRA with a British Bill of Rights (BBR). The Conservative Party is not disputing the need to supplement the UK system of law and government with a rights framework. But what will this BBR look like? Will that BBR have additional rights? Will it seek to exclude some in the jurisdiction from access to certain rights? Will it give more powers to the courts? Will it become part of a written constitution for the UK? Might such a BBR end up circumventing common law? Will this BBR seek to dilute the protection offered by the HRA where under Section 3 there is a duty to act compatibly with human rights so far as it is possible to do so? Might this be replaced with a lesser test? The HRA has injected proportionality into the UK. Is the aim of the BBR to encourage less strict scrutiny and to return to the relative impunity of Wednesbury?

Before it is considered for repeal, it is worth reflecting on what the HRA does and why it is shaped in the way it is. The HRA is a simple and codified document that can be referred to in cases where rights are engaged. However, it does more than transcribe pre-existing principles from the common law. It develops the common law and it plugs gaps where the common law has yet to catch up or evolve and creates a framework whereby future manifestations of certain rights can be explored.

The case of Smith and Grady v UK (1999) 29 EHRR 493 went to the heart of the limits of the pre-HRA framework. That case addressed the question of whether the blanket ban on gay men and lesbians serving in the armed forces was incompatible with public law principles. There was no remedy in English law and so the claimants were forced to take the case to Strasbourg. Outside of ingenious remedies relating to breach of confidence, the common law simply did not have the capacity to protect privacy rights. In turn this meant that the common law could not fashion a remedy to protect the rights of LGBTI people for being LGBTI under these circumstances. It was only when human rights arguments for a right to respect for private life were brought through the ECHR at its court in Strasbourg that the case was won.

The HRA has meant that these rights have been ‘brought home’. Section 2 of the Act requires that UK courts must take into account ECHR case law but no more than that. Strasbourg is not trumps. Additionally, under the HRA’s scheme the common law remains an equally vibrant force to protect rights. As the Supreme Court’s judgment last month in Kennedy v The Charity Commission [2014] UKSC 20 clearly identified, courts in the UK are expected to utilise and expand the common law as a source of fundamental rights and values.

This is consistent with the HRA’s purpose. In an article in 2011, Nicolas Bratza, the President of the European Court of Human Rights, said that there should be healthy dialogue between the Strasbourg Court and the UK Supreme Court. This dialogue should assist in developing Strasbourg jurisprudence, but it does not and should not preclude common law from continuing to develop its own fundamental rights based on case law.

Were the HRA to be repealed, the UK would still be bound to adhere to the ECHR and the additional human rights treaties that the UK is committed to. The UK sits at the centre of global human rights protection, thus ensuring as best we can that people across the globe have access, for example, to free speech, a fair trial and are protected from torture. It is the fact that the UK is held to account before international courts that allows the British Government to speak up for the rights of others. The brilliant recent FCO campaign to end the sexual exploitation of women in conflict was rooted in the UK’s commitment to international human rights protection.

It is the fact that the UK is held to account before domestic and international courts that allows the British Government to speak up for the rights of others.

Therefore, if the UK chooses to opt out of its international human rights treaty obligations, including the ECHR, as some within the Conservative Party have proposed, an immediate impact would be to diminish the UK’s reputation abroad. But the UK would get more than a black mark against it at the UN and the Council of Europe. Human rights are an obstacle for countries which do not want to be held to account. Governments which would relish the opportunity to avoid such accountability would justify the dismissal of their human rights obligations on the basis of the UK’s actions. The UK would have to pick up the pieces. International human rights law protects against persecution. Wherever there are systematic denials of human rights in breach of international human rights law, there is a corresponding increase in asylum claims, which the UK would be bound to accept.

It would be an ironic consequence of the Abu Qatada brouhaha if this led to the withdrawal of the UK from the international human rights framework which then meant other countries did likewise. This would enable them to persecute with impunity, which would mean that those facing torture or trials based on torture evidence in those jurisdictions would have to flee to the UK for protection.

It is always folly to adopt policies on the back of one-off cases, the outcome of which some disagree with. It would appear that those that call for our withdrawal from the framework protecting international human rights do so on the basis that you can’t have a blanket ban on all prisoners voting (the decision does not call for voting rights for prisoners), that those serving an all life tariff must be given the prospect that this sentence can be reviewed at some stage, and that an individual cannot be returned to a trial where the evidence against him was collected through torture. This ignores all the good that international human rights have brought to the UK: protecting children from abuse, providing rights for people with mental illness, establishing gay and lesbian rights, ending corporal punishment and abolishing the death penalty (to name but a few).

The HRA is not broken. It has done exactly what was needed. The HRA’s scheme is a careful model that builds effective human rights protection into the UK system of government without upsetting existing British constitutional traditions. There are therefore dangers in seeking to fix it, or, rather politicising it. By definition human rights transcend politics. We should also be careful what we wish for. By politicising how the UK protects human rights, we may end up with all sorts of unintended consequences. Isn’t it time to get on with building on the success of the HRA?

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Jonathan Cooper OBE

Jonathan is an international human rights law practitioner. As a barrister in private practice, he has worked with the UK Foreign & Commonwealth Office, the UK Ministry of Justice, the UK Home Office and the Director of Service Prosecutions.

Alex Cisneros

Alex is a barrister at No5 Barristers’ Chambers specialising in public law.