19 March 2012 | By Joanne Harris
Nearly 15 years on, the Human Rights Act is still dividing judges, the public and Parliament - and don’t even mention the media
Since its enactment in 1998 the Human Rights Act (HRA) has proven to be one of the most controversial pieces of legislation passed in the UK.
Its supporters believe it has made it easier for the European Convention on Human Rights (ECHR) to be enforced in this country and has enabled tougher scrutiny of laws and Parliamentary process.
Its detractors, however, claim that ‘criminals’ are using the act to escape justice and there have been several calls for the act to be repealed and the UK to leave the ECHR.
The ‘influence’ of the European Court of Human Rights (the European Court) in Strasbourg is also a target for criticism, in particular in the immediate aftermath of cases such as that of Muslim cleric Abu Qatada. Qatada was due to be deported from the UK until Strasbourg ruled against the move, with the judgment having been roundly condemned by senior politicians.
However, statistics released by the European Court in January show that the number of cases against the UK taken to Strasbourg is proportionate with those of countries such as France and Germany. Russia has the most pending cases in the court, with more than 40,000 applications awaiting hearings.
A leaked draft of a UK declaration giving more rights to national courts over Strasbourg hit the media recently. The declaration is set to be debated at an April summit in Brighton and forms part of an ongoing debate about the best way to deal with Strasbourg’s increasing workload.
Meanwhile, the HRA is cited in a stream of cases in the UK’s top courts. Recent high-profile matters where it was used include the attempts by the Occupy London protestors outside St Paul’s to escape eviction and a claim by students that university tuition fees are unjust. But it has also popped up in high-value commercial claims – often as an addendum to an argument on fact.
Despite the widespread application of the legislation, human rights specialists disagree that use of the HRA has become too broad in English and Welsh courts.
“It’s important that human rights law develops to keep pace with the rest of modern society,” says Stephen Hocking, a partner at DAC Beachcroft, who successfully represented the National Secular Society in its application to stop Bideford Town Council’s practice of praying at council meetings. The society claimed, among other arguments, that the prayers interfered with former councillor Clive Bone’s right not to hold religious beliefs under the ECHR.
Louise Christian, public law head a Christian Khan, argues that in fact the definition of human rights has in recent times become narrower.
She points to a “loophole” that makes it hard to get accountability from private companies for human rights failures, as the legislation is geared towards the public sector.
“Sadly the ability of people to use the HRA in our courts is being substantially eroded by this problem and by the attacks on legal aid and conditional fee funding,” Christian says. “The perception that there are a lot of human rights cases is simply wrong. The vast majority of court time is taken up by commercial law cases.”
Public Interest Lawyers founder Phil Shiner, who has represented clients on a wide array of human rights claims, believes human rights has not become too broad a term. “The definition of human rights is what it is,” Shiner says.
He contends that cases such as the tuition fees judicial review, in which students Callum Hurley and Katie Moore challenged the fees increase, are a legitimate application of human rights under the ECHR and the HRA. In Hurley & Moore v Secretary of State for Business Innovation & Skills, Public Interest Lawyers and the students’ counsel Helen Mountfield QC of Matrix Chambers argued that the Government’s decision to increase university tuition fees was in breach of the ECHR’s provisions on rights to education. The court disagreed with this argument, although it supported the students’ case to a certain extent on other aspects.
“It didn’t mean we were trying to introduce a human rights argument that wasn’t a legitimate argument, it just meant that the court wasn’t with us,” says Shiner.
Usage and abusage
However, he adds that some lawyers may indeed be including a human rights argument where the case does not need it, which could have a negative impact.
“I do think there are some members of the profession who do no favours by crowbarring a human rights element in,” he says. “I’m a human rights lawyer. I’m passionate about the HRA as a tool to bring accountability. If you’re not careful, the judiciary will begin to be a bit sceptical, and we don’t want that.”
Another possible extension of the HRA beyond its original intention, argue some, is that certain articles of the ECHR are being used in new or novel ways.
Another of Public Interest Lawyers’ cases, that of jobseeker Cait Reilly, is an example. Article 4 of the ECHR states that “no one shall be required to perform forced or compulsory labour”. Reilly’s case is concerned with the fact that she would have had her Jobseeker’s Allowance payments removed had she not taken up an unpaid work scheme, which amounted to forced labour. The outcry has led to several major employers pulling out of the scheme.
Overall the impression among lawyers is that the introduction of the HRA has been a good thing, despite the negative coverage it has received.
“The impact of the HRA has been positive – what it’s about is protecting the rights of those without resources or power in society,” insists Christian. “Those attacking it tend to attack not the principles, but highlight individual claimants who they see as ‘undeserving’, such as Abu Qatada.”
The main positive impact, argue those involved in human rights law from both a claimant and defendant perspective, is that it has raised awareness of human rights in the UK and provided a mechanism for judicial review of some significant issues.
Domestic matters can be brought much more quickly through UK courts, as low down as County Court level, rather than claimants having to pursue cases to Strasbourg, which takes a significant amount of time and money.
The HRA, say lawyers, has also led to public authorities being more careful when making decisions that might have human rights elements and thus ensures that rights are guaranteed without having to be challenged in court.
Politicking and nitpicking
However, the negative coverage of the issues and the potential for politicisation is a cause for concern. In a speech given late last year Jonathan Sumption QC, now a justice of the Supreme Court, said judges had become too involved in politics. Retired High Court judge Sir Stephen Sedley took issue with this stance in an essay in the London Review of Books, saying it “harms the standing of the judiciary and confidence in the law”.
Opinion is split on whether judges should speak out more in support of the act. Some think the press should take the lead on accurate reporting over what the legislation has brought and why it is a good thing, thus countering political attacks on it.
“Judges can’t enter a public debate with politicians,” states Hocking. “First, they’ll always lose, and second, having no need to chase popular approval is one of the things that makes judges independent in the first place. Good journalism is as essential as good law in defending human rights. There’s always much mileage in getting to the facts behind any political rhetoric involving the act.”
Much of the bad press appears to be founded more on a false perception that the HRA and ECHR are giving rights to those who are not entitled. This perception, of course, fails to take into account the fact that the ECHR enshrines its rights to everyone in the jurisdiction of the states that have signed up to it.
Christian believes repealing the HRA “would be a disaster for this country, setting back the progress made in democracy, accountability, protection of the vulnerable and access to justice”.
Others take a less fatalistic view. While Shiner thinks the HRA has been an enormous help in driving on human rights law in the UK, he acknowledges that UK citizens would still be able to take cases to Strasbourg if the legislation did not exist
– it would just take longer.
More fights over rights
Hocking agrees that judges would still be able to apply human rights law without the HRA. “Judges would continue to apply EHCR principles by way of the common and EU law,” he says. “We’re never likely to live in a society not governed by law and we’re never likely to live in a society without human rights. Parliament, please take note.”
At present it looks as though attempts to replace the HRA with a ‘Bill of Rights’ have fallen through and are off the parliamentary agenda. The Brighton summit could yet see changes to the way the European Court works, and this in turn may have a knock-on effect on human rights cases in the UK.
But they will – and many argue should – keep on coming.
Silks speak out
An increasing number of cases are being brought citing a breach of human rights on issues as diverse as education, the media and immigration. Has the definition of ‘human rights’ become too broad?
Monica Carss-Frisk QC, Blackstone Chambers: Our law does not recognise any ‘definition’ of human rights; rather, specific rights have come to be recognised as fundamental rights by the common law and by Parliament through the enactment of the Human Rights Act 1998 (HRA).
Critics of the HRA tend to portray human rights as somehow being a recent invention of the judges, when in fact they are neither recent nor, so far as the incorporation of the ECHR is concerned, judge-made. Case law contains innumerable examples
of judges recognising the proper boundaries of their role and the need to accord the legislature and the executive an appropriate degree of ‘latitude’ or ‘deference’ in interpreting and applying human rights, particularly in matters of social or economic policy.
Rhodri Thompson QC, Matrix Chambers: The scope of ‘human rights’ has always been a concern and I do not think there has been any major change here. The scope of an international charter of fundamental rights such as the ECHR is inevitably broad and will lead to claims by a wide range of people, not all of which will be good ones. There is nothing surprising about cases in the field of education, media or immigration raising human rights issues. There are basic rights at stake here: freedom of expression, family life and education are all protected rights. The assertion
of rights in a social field that costs taxpayers a lot of money is bound to be controversial, particularly in the present climate, but the right approach is not to deny that there are rights at stake here, but to strike a sensible balance between those rights and the general interest.
What do you think have been the main positive outcomes of the HRA’s enactment? What have been the negative outcomes?
Carss-Frisk: The HRA has had a hugely beneficial impact in introducing a particular focus on the need for public authorities to respect human rights in their decision-making. It has expanded the range of rights that are seen as fundamental beyond those traditionally recognised as such by the common law. Rights have been brought home, and there is less of a need for any dirty linen to be washed in the public forum of the Strasbourg court.
It is unfortunate that the HRA has also given rise to much negative comment in certain sectors of the media and elsewhere, creating the perception that some judicial decisions place too great an emphasis on individual rights at the expense of individual responsibility, and that democratic decision-making is being undermined illegitimately by unelected judges. This is, in my view, an unwarranted perception.
Judges do not decide on the merits of policy; they decide on the legality of policy.
That is their job.
One possible negative impact of the HRA needs to be guarded against – the danger that principles derived from judgments of the Strasbourg court on the extent
of the ECHR rights will be relied on by government to dilute our fundamental common law rights.
Thompson: The main positive outcomes have been to improve judicial understanding of the issues at stake where individual rights are in conflict with wider factors and to avoid the need for individuals to go to Strasbourg to assert rights based on the ECHR.
The negative aspect is that it has provided a focus for concerns in the media and elsewhere that the balance has swung too far in favour of an agenda of individual rights. There is nothing in the act that makes this inevitable – the great majority of protected rights require a balance to be struck by the courts – but it is perhaps not surprising that this has happened. Some coverage of human rights cases suggests that judges are too gullible or are ignoring the wishes of ordinary people or of Parliament. In my experience that is not fair criticism, although difficult cases will inevitably arise.
Has the legislation become overpoliticised?
Carss-Frisk: It is a shame that the act, and indeed the participation of the UK in the convention system, have become such a political issue. This can only undermine sensible evaluation of, and debate about, the merits of the act and the possible need for a Bill of Rights.
But the establishment of a Commission on a Bill of Rights to consult about and give careful consideration to these issues, away from the party political arena, is of course a welcome development.
Thompson: If that is the case, it is the result of sensational coverage of cases where individual rights have been upheld in difficult cases.
The judges have made it very clear that protection of human rights is ultimately a matter for Parliament, as the act itself requires. The risk is obviously most acute when the UK loses a politically sensitive case in Strasbourg, as is bound to happen from time to time.
What can be done to give the HRA better press? Does the judiciary need to be more
vocal in its support of the legislation?
Carss-Frisk: The media will always be interested in judicial decisions that may appear to be extreme. Unfortunately judgments that uphold the decisions of the Government or Parliament in the face of human rights challenges rarely hit the headlines. That may be inevitable, although now that the repeal of the act and its possible replacement with a Bill of Rights are being actively considered by the Government, one would expect those sections of the media that have opposed the HRA to rise to the challenge
of explaining just how this would represent an improvement.
If the judiciary were to become more vocal in supporting the act, this would give rise to the obvious danger that the judges would be perceived to be entering the political arena, which could harm confidence in the judiciary and therefore the law.
Explaining how the act works is a different matter.
Thompson: The many cases where the balance comes down in favour of the public authorities are not newsworthy, but it might be useful to have more balanced coverage of the types of cases that have succeeded or failed over a period.
Some people will only take notice of cases where individual rights are protected in controversial circumstances, for example crime or immigration, but there are also many people who see the act as an important part of updating the British constitution.
I am not sure that the judges are the best people to help with this.
What would be the impact of the repeal of the HRA 1998?
Carss-Frisk: The impact of a repeal of the act would of course depend on what, if anything, were to replace it.
It is somewhat reassuring that the terms of reference of the Commission on a Bill of
Rights requires the creation of legislation that “incorporates and builds on all the obligations under the ECHR” and ensures that those rights continue to be enshrined in UK law. It is to be hoped that any Bill of Rights does indeed achieve those objectives.
Personally, I hope that the achievements of the act will be recognised and that this groundbreaking constitutional statute will remain in place.
Quite apart from anything else, repealing it seems to me to convey quite the wrong message about how seriously we take our rights.
Thompson: The current act is well-understood by the courts and widely supported – it would be difficult to replace it with a better piece of legislation.
If it was repealed without any replacement then it would cause uncertainty and confusion, as the existing case law on the ECHR would still be relied on for the relevant principles.
If the UK courts were to decide that arguments based on the ECHR could no longer be put forward in domestic litigation, then that would lead to an increase in cases in Strasbourg.
In cases with an EU element, the position would be even more confusing in that claimants would still be able to assert the ECHR as part of EU law.