HRA gains plaudits but terrorist legislation set to test it to the full

In an era when terrorism dominates the public conscience and governments whittle away freedoms in the name of security, the Human Rights Act (HRA) celebrated its fifth anniversary yesterday (2 October).

Created to force English courts to interpret the law in a way compatible with the European Convention on Human Rights (ECHR), five years in and the legal fraternity seems happy with the results. Moreover, the courts are also under a duty to develop the common law to be compatible with the ECHR.

Professor Conor Gearty, director of the Centre for the Study of Human Rights and professor of human rights law at the London School of Economics, labelled the introduction “successful”.

“It offers strong judicial protection of human rights in the right areas – criminal justice, terrorism – but not leading the judges to be too activist in areas in which they do not belong – economic policy, taxation,” he said. “People are out of jail who would still be being unjustly detained had it not been for the act and asylum seekers aren’t starving on our streets because of the act.

“The Government has to think twice before enacting repressive terrorism laws.”

The director of human rights legal lobby group Justice, Roger Smith, said the HRA had seen the UK “effectively incorporate a bill of rights”, adding: “It’s been a fundamental change of the jurisprudence of constitutional law in this country.”

Smith said there was general disappointment with the speed at which some judges were applying the principles, but paraphrasing Chairman Mao, he added: “If it’s still too early to judge the effect of the French Revolution, it’s still too early to judge the impact of the HRA.

“But five years in, where we are now is actually pretty good and reasonable. The judges have broadly got us to a reasonable position.”

Chair of the Human Rights Lawyers Association and Doughty Street Chambers barrister Jonathon Cooper said the HRA’s significance could not be underestimated and that it has “settled into the English legal system very well. It’s all about accountability,” he continued, “and it’s working well and holding the Government and public authorities to account.”

By far the biggest test of the implementation of the HRA was the case brought on behalf of nine foreigners detained indefinitely at Belmarsh Prison under the Government’s Anti-Terrorism, Crime and Securities Act 2001 (ATCSA).

The landmark moment for the HRA came with the 16 December 2004 House of Lords ruling, which ruled that the ECHR’s rights to liberty and freedom from discrimination overruled the powers of the ATCSA.

Cooper commented: “A policy predicated on discrimination is an unlawful one. The House of Lords showed the Government’s anti-terrorist legislation was discriminatory and unworkable.”

Smith added: “The issue related to national security, and the judges construed the law in a way that impressed me by their boldness and correctness in the decision. It was a very bold decision, but it was the right one in legal terms and right in political terms.”

The right to privacy principles enforced by the HRA were key considerations for the Law Lords when they granted lifetime anonymity to Jon Venables and Robert Thompson upon their 2001 release, and in awarding supermodel Naomi Campbell damages in her case last year against the Daily Mirror.

But the continued focus on terrorism-related issues is where the HRA will continue to have the most impact in the future. Battles loom over individual privacy versus national security and surveillance, the use of evidence obtained through torture, asylum seekers and deportation where detainees may be subjected to humans rights abuses in their home countries.

In the words of Gearty: “These cases will tell us a lot more about whether the Human Rights Act is real or just for show.”