The Human Rights Act 1998 (HRA) is a very simple statute. It works like any bill of rights in allowing individuals in the UK to enforce their rights in their local courts. It also requires public authorities to respect the rights of those they serve. Part of Labour’s 1997 commitment to a new constitutional settlement, it represents a new way of thinking about law, politics and the relationship between public authorities and individuals.
The rights protected by the act are also very simple. They include the right to life, liberty and the right to a fair trial; protection from torture and ill-treatment; freedom of thought, conscience, religion, speech and assembly; the right to marry; the right to free elections; the right to fair access to the country’s education system; and an overarching right not to be discriminated against.
Pretty basic stuff, you might think. And you would be correct. The rights protected by the HRA are mainly drawn from the 1950 European convention on human rights, which was a way of saying ‘never again’ when the full horrors of the second world war were laid bare. A simple set of minimum standards of decency for humankind to cling onto for the future.
Against that background, it is perhaps surprising that the fate of the HRA is likely to be a hot political issue in the run up to the general election next year. The position of the Conservative party has been made clear by Chris Grayling, the justice secretary, when he revealed late last year that “replacement” of the HRA would be part of their election campaign. The only thing that has held them back during this government has been the opposition from Liberal Democrats to any watering down of it or our commitment to the European convention. The Labour party, for its part, has been equally clear that it intends to retain the HRA. Sadiq Khan, the shadow justice secretary, was trenchant last October when he pledged that “Labour is determined to fight hard … to keep the Human Rights Act and continue to be signatories to the European convention on human rights”.
The outcome of the recent local and European elections has now intensified the debate. The UKIP challenge will no doubt push the Conservative party to further distance itself from the obligations under the convention, which is still frequently wrongly described as an EU treaty. It also has the potential to unsettle Labour and tempt some to downgrade the party’s commitment to the HRA. That would be a grave mistake for a party which not only introduced the HRA but which also oversaw the ratification of the European convention on human rights under Clement Attlee.
Time then to meet the challenge head on, to hold the arguments for repeal up to the light and to expose them for what they are: mischief and myths.
A victims’ charter not a villains’ charter
Although some defendants have been able to rely on the HRA to their advantage in criminal cases, by and large, the impact of this has been no more than a tweaking of our current rules and approach. There has been no fundamental shift in defendants’ rights and most of the HRA challenges brought by defendants in our courts have failed. Those that have been successful have usually involved issues that many would regard as fundamental to our justice system, such as overturning indefinite detention of foreign terror suspects without charge or trial, and the ending of the automatic removal of toddlers from their mothers in prison.
What the HRA has done is herald a new approach to victims’ rights. Before the HRA, there was no right to an effective investigation into serious allegations of criminal wrongdoing. Even where the police clearly and obviously failed to protect victims or to investigate properly, the common law offered nothing. The ‘positive obligation’ to protect life and limb found in the HRA changed all that. Often after many years of struggling to be heard, victims now have a right to have serious allegations taken seriously. Child victims of trafficking, women subjected to sexual violence, prisoners who have died in custody, those with vulnerabilities that inhibit reporting of abuse: all have benefitted from this fundamental change in emphasis. And some families of British soldiers have been able to secure inquests into their deaths in cases where inadequate care or protection may be involved.
The HRA has also changed the approach in the prosecutor’s office. Victims can now challenge the Crown Prosecution Service (CPS) if they decide not to bring charges in their case relying on the HRA. And that has led not only to better decision-making but more generally to much better policy-making in the CPS. The impact in court has also been dramatic. Victims, once voiceless in the process, can now have their rights and interests taken into account. Protective measures for victims are one example, but there are others, including the right to have some degree of control over the disclosure of sensitive medical notes.
It is often thought that civil liberties and human rights are two sides of the same coin but this can be misleading. Whereas civil liberties generally protect individuals from the state by restricting interference in our affairs, human rights also oblige the state to take positive steps to protect us in certain circumstances.
This distinction is important. Such ‘positive obligations’ are the only viable source of victims’ rights and the common law has struggled to achieve this level of protection. Those who advocate the repeal or replacement of the HRA risk turning the clock back, or, at the very least, impeding the progress made in victims’ rights.
Unfettered executive action?
Some within the Conservative party would have us believe that repealing the HRA and/or withdrawing from the European convention on human rights would free up the government to remove foreigners from the UK at will, regardless of any threat they face of death, torture or ill treatment, or serious impact upon children left behind. But that argument simply does not withstand scrutiny.
As a leading light in the UN, the UK has long recognised the importance of the international obligations, spawned by the 1948 Universal Declaration of Human Rights, which bind like-minded states together for the collective good of all. That is why the Thatcher government ratified the UN Convention against Torture and John Major ratified the UN Convention on the Rights of the Child in 1991, which requires children’s interests to be central to any decisions affecting them, including the impact of separating them from parents facing deportation. Unless David Cameron is prepared to renounce these core UN commitments entered into by his predecessors, the threat to renounce the European convention is nothing more than spin and window dressing.
Labour should call the Tories bluff on this. The prospect of the UK being in constant breach of fundamental UN human rights obligations is unedifying and fundamentally at odds with the frequent FCO declaration that “human rights, democracy and the rule of law are at the heart of the government’s foreign policy”. There must be a high level of embarrassment at the FCO when government ministers ritually denounce the European Court of Human Rights whilst instructing the rest of the world, including other European states, to respect ‘the rule of law’ and our collective international human rights obligations.
Relations with Strasbourg
Chris Grayling has made the relationship between our courts and the European Court of Human Rights in Strasbourg the cornerstone of his attack on the HRA. He claims that our courts are no longer free to decide the cases coming before them because of interference from the Strasbourg court. But he overstates the case and, in doing so, he distorts the argument.
The HRA simply requires our courts to ‘take into account’ the decisions of the Strasbourg court. It does not require them to apply or follow those decisions. As the former Labour Lord Chancellor, Lord Irvine, has argued, the language is clear and unambiguous. Judges are not bound to follow the Strasbourg court: they must decide the case for themselves.
Parliamentary and legislative history bear this out. When introducing the human rights bill in parliament, Lord Irvine was clear that it would “allow British judges for the first time to make their own distinctive contribution to the development of human rights in Europe”. As the late Lord Bingham rightly pointed out, it is a contribution which, before the HRA, British judges were not permitted to make. So when Chris Grayling argues that he wants to make our courts ‘supreme’ again, this is both misleading and mischievous. As the president of the Supreme Court has only recently said, our Supreme Court is already supreme in that it is free to decide cases its own way. But under our system of parliamentary democracy, carefully maintained by the HRA, only parliament is supreme on domestic issues – a constitutional predominance that the Tory party is least likely to try to dilute.
Anyway, the argument should not become fixated on what happens in court. Although practice is uneven, an inquiry by the Equality and Human Rights Commission demonstrated that the HRA has quietly but effectively influenced the everyday practice and procedure of a range of public authorities, from the police to social workers, care homes to mental health hospitals. These are developments to be proud of and which UKIP and the Tories would openly like to overturn.
The case for the HRA is a strong one. It is a moral case based not only on learning from the history of some of the worst violations of human rights before and during the second world war, but also on the here and now. If a new settlement based on social inclusion and greater equality is to be reached, the HRA should not be viewed suspiciously as a burden, but promoted as an instrument of social cohesion and public purpose.