The Human Rights Act - a draftsman's view one year on
1 October 2001
It was a great privilege to participate as a member of the small Parliamentary drafting team preparing the bill that became the Human Rights Act 1998. But how has the act measured up to the hopes of those involved in its creation?
The Human Rights Act (HRA) is the property of no one. Its conception and enactment were the product of many minds and as many agendas. It involved politicians, lawyers, organisations ranging from Liberty to the faith communities, and, of course, those campaigners, notably Lord Lester QC, whose earlier attempts to bring human rights home into UK law formed a natural foundation for the HRA. All had their own unique take on what the legislation might achieve.
There is no baseline expectation against which to measure its performance after a year in force. In any event, the act's most fundamental object is to bring home the European Convention. Debate in the courts and elsewhere should be first and foremost
about what the convention, and the legal principles associated with it, have to say about rights. In a sense, the less we hear about the act itself, the more successfully it will have done its job.
Sure enough, most judicial pronouncements have focused on the underlying requirements of the convention rather than on the mechanics of the act. But naturally, having discovered what our rights are, we want to know who we can vindicate them against and how. Inevitably, the courts have to seek out answers to these questions in the act's provisions. So, how has the act fared under the judicial microscope?
First, the courts' views have often been informed by the act's generally simple, plain-English style. Non-technical language points to a non-technical approach to the law. That cue was taken early on by the House of Lords in R DPP, ex parte Kebilene, accepting that the act's retroactive effect in proceedings brought by or at the instigation of a public authority before 2 October 2000 (Section 22(4)) extended to an individual's appeal against a lower court's decision in those proceedings. Viewed from that standpoint, the opposite conclusion recently reached by the Lords in Lambert, on the basis that certain provisions of section 7 had to be read disjunctively, perhaps represents an unfortunate retreat into technicality.
Second, in the face of UK law's long insistence that all statutes are of equal status, many commentators heralded the act as a piece of 'constitutional' or 'organic' legislation. The act itself makes no such claim. The courts have recognised that the fundamental nature of its subject matter means it has to be treated as laying down not just new law but also a new approach to the law, in particular to the way other, more workaday legislation has to be understood and applied. In R A (Sexual offence: complainant's sexual history)  UKHL 25 the House of Lords recognised that Section 3 of the act created a new rule of statutory interpretation, strong enough to require the court in effect to ignore a swathe of the rape shield provision (Section 41) of the Youth Justice and Criminal Evidence Act 1999. Otherwise the provision would have been incompatible with the accused's convention right to a fair trial.
That development recalls one of the more sensitive topics of debate around the Human Rights Act: how far was Parliament being asked to shift from elected politicians to judges the power of decision over controversial clashes between rights and conflicting social interests? Many recent convention decisions of UK courts balance, as they must, the citizen's rights against other goals of moral or political importance. In the rape shield case, the proportionality principle required the court to second-guess Parliament's own recent assessment of the 'familiar triangulation' of interests of the accused, the complainant and the wider public interest. The court concluded that the restrictions on permissible questioning on issues relating to consent amounted to 'legislative overkill'.
But that might not represent quite so profound a realignment of power as might appear at first blush. Many human rights lawyers believe that courts have long concealed moral and political judgments behind seemingly agnostic statements of legal principle. The proportionality principle forces the courts to come clean about those judgments, setting out and explaining the relative weight and priority they attach to competing values. Far from giving the judiciary carte blanche, the act has asserted the discipline of transparent decision making.
Still in its infancy, the act has yet to exhaust its potential to reassure, surprise or dismay those present at its birth. But in a year from now, if we can say that it has at least reaffirmed the values of imagination, transparency and plain thinking in our law, then maybe we will have found something about which we can all agree.
Gordon Nardell is a barrister at 39 Essex Street and a former member of the Parliamentary Counsel Office and the secretariat of the European Commission of Human Rights.
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