UK Law Articles
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The Times
September 26 2000
Anthony Lester looks forward to the day when our civil rights become effectively protected under law
October 2 will be a date to celebrate
The Human Rights Act 1998 is the most significant constitutional measure for the people of the UK since the Great Reform Act. Subject to the ultimate sovereign power of the Westminster Parliament, the Act creates fundamental law that is superior to ordinary law. It is subtle and well-designed, blending the positive civil and political rights guaranteed by the European Convention on Human Rights into the fabric of British law, and going with the grain of our system of parliamentary government.
The Convention rights are not esoteric or alien to the common law, but part and parcel of our British heritage, deeply rooted in British political thought, the common law and our great constitutional charters. They are as much the birthright of British citizens as of other European citizens. They are as English as the Bill of Rights of 1688-89, as Scottish as the Claim of Right. British statesmen and jurists were leading master builders of the Convention itself.
The Act commands ministers, civil servants and all public officers to exercise their powers in ways that are compatible with the Convention rights. It gives them a sense of direction and a compass. If they act in breach of their new public duty, they will be liable to victims of their abuse of power. Unlike the position in many other democratic countries, and under EU law, our courts will not be empowered to strike down Acts of Parliament - that would be said to infringe Parliament's sovereignty. In that respect our courts have been given less power than the courts of other democracies in Europe and the Commonwealth.
But our judges are given sufficient power to remedy most human rights abuses. They are bound, where possible, to read and give effect to old and new Acts of Parliament so as to comply with the Convention rights; and they must fashion effective remedies for breaches. In exceptional cases where it is not possible to read a statute to meet the Act's standards, the courts will declare the statute to be incompatible with the Convention rights. The offending statute will remain in force unless and until the Government and Parliament decide to amend it. If they do not exercise that option, it will remain for the European Court of Human Rights to decide if it agrees with the British judicial verdict.
Under this changing constitutional system, ministers are made more accountable to the rule of law administered by the independent judiciary and to Parliament itself. They are required to state on the face of each government Bill whether they deem it compatible with the Convention rights. When the Parliamentary Select Committee on Human Rights is set up it will advise both Houses of Parliament whether government proposals comply with the Convention.
In these ways all three branches of government - legislative, executive and judicial - have responsibility for securing compliance with the Convention rights, each within its own sphere. The success of the new Act depends upon the active engagement of each branch. It provides essential constitutional guarantees of human rights throughout the UK - a Bill of Rights for the new quasi-federal scheme of devolution. The Scottish Parliament and Northern Irish and Welsh Assemblies and Executives must exercise their devolved powers in ways compatible with the Convention rights. If they do not, the courts will intervene on the side of the individual or minority whose rights have been violated, striking down inconsistent legislation where necessary.
British judges have always had to make difficult choices in politically controversial cases, striking a balance between conflicting individual rights and freedoms, and defining the limits of the powers of the State. Is it lawful for health professionals to withdraw artificial feeding from a patient in persistent vegetative state who will then die? Should a newspaper be allowed to publish an article on a matter of public interest even though it reveals official secrets or details of a politician's private life? Has a minister abused his powers by excluding known homosexuals from service in the Armed Forces? The courts have decided these cases without any mandate from Parliament, or prescribed code of ethical standards of good administration. At times the common law has seemed ethically aimless and out of touch with contemporary social needs and values.
The new Act prescribes the task of the courts and sets limits to their powers. The fact that human rights cases involve politically controversial decisions does not mean that our judges are to act as politicians. They will continue to act judicially deciding each case according to law. They are as well equipped as the courts of any country to protect individual and minority rights against what John Stuart Mill called "the tyranny of the majority", and excessive encroachments on human rights.
The Conservative front bench still adopts a negative stance to the Act, as it once did to the Race Relations and Sex Discrimination Acts. But I believe that this constitutional innovation is welcome to most people and will endure as an efficient part of the British constitution. Judges are fallible, like all human beings. But they are independent of the executive and less likely than elected politicians to pursue populist measures or the convenience of state power at the expense of human rights.
We should celebrate October 2 as the day on which our civil rights and liberties come to be more effectively protected under the law of the British constitution.
Lord Lester of Herne Hill, QC, practises at Blackstone Chambers and co-edits (with David Pannick, QC) Butterworths Human Rights Law and Practice. He campaigned for 30 years to make the European Convention on Human Rights part of UK law.
