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Published: Fri, 02 Feb 2018
On balance, the verdict must be that the Human Rights Act 1998 has started to produce the benefits that would be hoped for from a Bill of Rights, but that there is still substantial room for improvement. Discuss
The United Kingdom occupies a unique position in the development of human rights. It has no written constitution, and yet before 1998 had arguably developed some protection of the residual liberties of its citizens through the courts. The 1998 Human Rights Act (HRA) was developed as a compromise between the demand for express rights protection and the doctrine of parliamentary supremacy. It does not operate in the same way as a Bill of Rights, but incorporates the European Convention on Human Rights (ECHR) and its jurisprudence into UK law. After five years of its operation on our legislation, case law and public bodies, an initial assessment of the effects of this most unpredictable statute can be undertaken.
In order to establish what might be looked for from a Bill of Rights, it may be helpful to consider the definition provided by Lord Lloyd. He wrote that a Bill of Rights is
‘a constitutional code of human rights which is binding in law, is inevitably generally worded and has the following other key characteristics;
a) The code should be given some sort of overriding authority over other laws.
b) Power should be vested in the judiciary (whether generally or by way of a Constitutional or Supreme Court) to interpret the rights set forth in the Bill of Rights and to determine judicially their proper scope, extent and limits, and their relationship inter se.
c) The judiciary will possess the power to declare legislation invalid which it holds to be repugnant to the rights guaranteed in the Bill of Rights.’
A major obstacle to the creation of such a Bill of Rights in the UK was its unwritten constitution, one of the central planks of which is the doctrine of Parliamentary Supremacy. The 1688 Bill of Rights, which established the sovereignty of Parliament and limited the power of the monarchy, can be considered the first declaration of the rights of the citizens of England. Subsequent to it, the protection of rights and liberties in the UK has developed subject to the primacy of Parliament, and a Bill of Rights which would give unelected judges power to strike down parliamentary legislation would have been fundamentally at odds with this idea and was abhorrent to many. Commentators were also concerned that a Bill of Rights would lead to complacency and would be a ‘purely cosmetic’ change which would not provide genuine constraints on the power of the Government.
It should be remembered that this debate also took place against a background of increasingly interventionist Government and unease over the extent of the executive’s power. Until relatively recently, most commentators were content to subscribe to the Diceyan thesis, that reliance on an unwritten constitution was a strength, which would allow flexibility and social change, and because in any case the courts would interpret legislation so as to protect civil liberties arising from common law. According to Dicey, protection of liberties in the UK was based on residual liberties, protection by the law of our freedom from certain interferences.
However, with the 1970s and 1980s came a wave of terrorist activity and other pressures which resulted in new, broadly-drawn offences increasing the discretionary powers of government ministers and agencies, and limiting the flexibility of judicial interpretation. When, as at that time, there is a strong government, or a national crisis when the Opposition is unwilling to argue with emergency legislation, there may be little or no scrutiny of government policy. Furthermore, the reaction of the judiciary in cases arising from the Miners’ Strike of the 1980s, the ‘Spycatcher’ case and Malone v Metropolitan Police Commissioner showed that they had no real desire to protect civil liberties. JAG Griffiths commented that;
‘… it is demonstrable that on every major social issue which has come before the courts in the last thirty years – concerning industrial relations, political protest, race relations, governmental secrecy, police powers, moral behaviour – the judges have supported the conventional, established and settled interest. And they have reacted strongly against challenges to those interests.’
Suddenly it became apparent that there was no effective mechanism by which rights could be enforced. Geoffrey Robertson argued in his seminal text, ‘Freedom, the Individual and the Law’, that;
‘The absence of any constitutional guarantees of liberty which would empower our courts to correct abuses of power by state agencies, an over-reliance on doctrines about sovereignty of Parliament, the accountability of Ministers, and the reluctance to guarantee to citizens enforceable legal rights have produced a society in which civil liberties are regarded as privileges granted at the discretion of the powerful rather than as rights capable of direct assertion by members of the public.’
The result of this imbalance, Robertson went on to argue, was that although ‘there is little likelihood that any Government would risk electoral reprisals by passing laws which deprive the majority of any right which they value,’ the fundamental rights of minority groups were impossible to protect.
A growing number of voices began to agitate for a coherent statement of rights in the UK and a means to protect them. How best to do this was considered in a 1978 select committee of the House of Lords, which felt that if a Bill of Rights were necessary (a point on which they were not in agreement) it should be one which incorporated the ECHR. Subsequent attempts to pass such a Bill failed, and it was not until the Labour Party included the incorporation of the ECHR into UK law in their 1997 Election Manifesto that this became a real possibility. In its White Paper, ‘Bringing Rights Home’, the new Labour Administration stated that
‘We aim to change the relationship between the state and the citizen, and to redress the dilution of individual rights by an over-centralising government that has taken place over the past two decades.’
But the solution of enacting a Bill of Rights in the conventional sense was rejected. Jack Straw, then Home Secretary, commented at the despatch box that by enacting a Bill of Rights,
‘…we would have been establishing–either by the front or back door–a substitute written constitution for the United Kingdom. We would have been altering what I regard as a fundamental position established in our constitution: the sovereignty of Parliament.’
In truth, the incorporation model is likely to have been the only way in which express Rights provision could have been achieved, since the creation of an entirely new Bill of Rights would effectively have demolished the existing constitution and would therefore have met with considerable opposition. But what does this mean for the effectiveness of rights protection in the UK? Has the Human Rights Act begun to produce the benefits that a Bill of Rights might have brought?
By incorporating the ECHR into UK law the UK has gained a number of substantive rights. Firstly, the Fundamental Freedoms in Articles 2 – 7 of the Convention; the rights to Life, to Freedom from Torture or Inhuman or Degrading Treatment, to Freedom from Slavery and Forced Labour, to Liberty and Security of Person, to a Fair and Public Hearing, and to Freedom from retrospective criminalisation. These rights are absolute and there are no grounds for their lawful restriction by the state. Articles 8-12 set out the Higher Freedoms, the rights to respect for private and family life, to freedom of thought, conscience and religion, to freedom of expression and of peaceful assembly and association, and the right to marry and found a family. These Higher Freedoms all have secondary sections enumerating the restrictions on these rights. These vary according to the right under consideration, but generally speaking, if state interference with a right is prescribed by law, has a legitimate aim, is necessary in a democratic society and is applied in a non-discriminatory fashion, the ECtHR will be unwilling to intervene. Of these conditions, the most widely used is the ‘necessary in a democratic society’ condition, meaning that ‘an interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.’
The Act works by requiring the courts to ‘take into account’, so far as is relevant, the ECHR and its jurisprudence , including case law and principles developed by the European Court of Human Rights (ECtHR) and the Commission, such as the Margin of Appreciation and the principal of proportionality. The Act also provides that
‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’
Thus reference to the Convention and the ECtHR jurisprudence is, to a large extent, at the discretion of the court and is only required as far as possible, so that incompatible legislation will still stand. Section 4 allows the higher courts to make a declaration of incompatibility if a statute cannot be interpreted compatibly with the Convention, but this will not have any effect on the case at hand, but may lead to action by Parliament to change the law. However, such declarations do apply considerable political pressure, particularly in view of the current foreign policy aims of the UK in terms of seeking to influence the Human Rights policies of other nations, as was seen in the aftermath of the recent ‘Belmarsh’ judgement. Subsequent to a Declaration of Incompatibility, Government policy changed almost immediately, although with doubtful real relief to the rights of those affected.
The jurisprudence of the ECtHR stems from petitions by individuals once the remedies available in the national courts are exhausted. The ECtHR will hand down an adverse ruling where the national law is clearly infringing a convention right, as was the case in Lustig-Prean and Beckett v. United Kingdom. This was the ‘gays in the military’ case, and is a good example of the tendency of the Court to rule against the state where there is a strong social consensus; subsequent to that decision, the UK Government immediately changed its policy. However, in deciding whether one of the Higher Freedoms had been infringed, and where social values in Europe remain in flux on an issue, Handyside v UK established a presumption that, subject to ‘a European supervision’, ‘[s]tate authorities are in principle in a better position than the international judge to rule on moral and social issues’; the doctrine of the Margin of Appreciation.
Under Article 15 ECHR ‘in times of war or other public emergency threatening the life of the nation’ a state may derogate from the ECHR ‘to the extent strictly required by the exigencies of the situation.’ This does not allow derogation from Articles 2, 3, 4 or 7, and the State must show that there is a state of war or public emergency. In Brogan it was determined that the fact that the emergency measures had been in place since 1974 did not mean that the emergency was not still in being. The Margin of Appreciation is particularly wide here, as we see from the cases relating to the IRA broadcasting ban in the 1990s. In McLaughlin v UK and Brind v UK , the petition’s argument that the ban contravened the Article 10 Right to Freedom of Expression and the procedural Article 14 prohibition of discrimination failed, as the UK’s argument that their actions were necessary in the interests of national security was accepted. In Gerry Adams and Tony Benn v UK the Commission confirmed that the margin of appreciation for national security issues is very wide, and that such issues are for the state to decide. More recently, while the ‘Belmarsh’ ruling of the House of Lords in A and X and Others v Secretary of State for the Home Department did result in a Declaration of Incompatibility, the grounds were that the Anti-Terrorism, Crime and Security Act 2001 contravened the Article 14 Prohibition of Discrimination because it applied only to immigrants and not to citizens of the UK. It did not hold that the UK’s derogation from Articles 3 and 5 under Article 15 went too far, nor did it indicate that the Margin of Discrimination had been exceeded.
Such considerations will not always muzzle the courts entirely; an excellent example of an area where the Convention has had a visible impact on public policy relates to the mandatory life sentence for murder. In R v Offen, Stafford v UK and finally in R v Secretary of State for the Home Department ex parte Anderson the ECtHR and UK courts considered the mandatory life sentencing required under UK law and concluded that it was incompatible with Article 5 – a complete review of murder as an offence, including sentencing, is pending. However the interference of the courts in what is seen as the purview of the Home Secretary has engendered the conflict between the politicians and the judiciary that was foreseen by many at the outset. The Home Secretary, David Blunkett, said that;
‘When Parliament took its decision to abolish the death penalty for murder, it was on the basis that it was replaced by this principle of parliamentary accountability, which I am determined to maintain. This is fundamental to confidence in the criminal justice system and our democracy…. My overarching priority will remain protecting the public from dangerous offenders, while doing everything we can to assist and support victims and their families … It is crucial that jurisprudence does not interfere with this basic right on behalf of the elected government.’
There have been pre-HRA cases where the ECHR has upheld the right of the individual over the national security considerations of the state. In Chahal v UK, an illegal immigrant into the UK successfully argued that deportation would contravene his right to Freedom from torture or inhuman or degrading treatment under Article 3 ECHR. However, this week, following the attacks on London, the Government has signed a ‘Memorandum of Understanding’ agreement with Jordan promising that any detainees deported there will not be at risk of torture. Lord Falconer, the Lord Chancellor, has announced that should judges find that the judgement in Chahal still stands in this new situation, he would propose a Bill which would ‘set out the need to take account of the rights of national security, as well as the right of the deportee to be free from the risk of torture or ill-treatment anywhere.’ He is clearly seeking to warn judges that a judgement adverse to the Government would result in a fettering of the judge’s discretion in interpreting both the HRA and the ECHR.
These new developments, together with the existing measures taken to hold detainees under house arrest under the ACSA 2001 following the ‘Belmarsh’ ruling, represent a clear indication of the Government’s will on this issue. Although, Tony Blair said following the 2001 attacks on America that ‘it is possible to make the changes necessary to protect our citizens without getting rid of the ECHR,’ the Government appears to feel that it is impossible to do so without derogating to a large extent from the ECHR. Furthermore, it does not appear, in this situation, that those affected by such anti-terrorism measures have any effective way of enforcing their convention rights under the HRA, since there exists no real mechanism by which the Convention and the HRA can overpower the supreme will of Parliament.
It is for this reason that the very quality which allowed the Human Rights Act to come into being, a key respect in which it differs from a Bill of Rights, may ultimately spell its demise and render it useless as an instrument of rights protection. The continued deference to the superiority of Parliament which it perpetuates means that the Act is no different from any other statute and that there is therefore nothing to prevent its repeal by Parliament. This is a key weakness at a time when the defence of the rights of minorities is not a vote winner and is easily portrayed as harmful to national interests. Michael Howard, the Leader of the Opposition, has argued that the Act ‘has drawn British judges into areas of political controversy though no fault of their own’. He argues that it leaves us subject to judge-made law, rather than to law created by an elected body, and hampers the government’s freedom to act in defence of the national security.
Although the Act allows the development of the law to be influenced and educated by a depth and breadth of social experience which would never have resulted from the law of one country alone, it irritates the isolationist tendencies of our island nation in a way which a home-grown Bill of Rights would never have done, leaving it open to accusations of interfering with our sovereignty and of thereby allowing ‘foreign’ legal principles to endanger our safety. These claims are open to obvious criticism – as we have seen the Human Rights Act diligently preserves Parliamentary Sovereignty, arguably at the expense of its effectiveness. But they are claims which may result in the death of the Human Rights Act – in an effort to secure the support of a frightened public, the Conservative Party has made much of this argument and pledged to repeal or amend the Act if they are elected. Jack Straw assured the House of Commons in October 1998 that;
I think that one of the profound strengths of our system is that, although we may bind ourselves to the European Union, to United Nations treaties or to the European convention, we do not bind ourselves for ever, and that it remains open to this Parliament, at any stage that it chooses, to decide to withdraw from those conventions.
This statement, perhaps intended merely to reassure sceptics at the time it was made, appears prescient today. The drafters of the Human Rights Act, in avoiding the entrenched nature of a Bill of Rights, may have condemned it to extinction now the tide of political opinion has turned.
This is a key time for the Human Rights Act. Writing in 2003, Keir Starmer noted encouragingly that;
‘…the first two years of the HRA have been important … because the HRA has survived the challenge posed by the tragedy of September 11 and, in doing so, has demonstrated the sophistication of modern human rights.
In 2005, it seems difficult to suggest that the Human Rights Act will survive the current challenges unscathed. While it weathered tightened security controls following attacks on America, it may not emerge as successfully from the aftermath of attacks on the United Kingdom itself. As Sadiq Khan, Labour MP for Tooting, said this week, “[t]he point about human rights is not to have them when things are hunky-dory. The point about human rights is that they provide a base when things, frankly, are not hunky-dory”. If this ideal of steadfastness under adversity is the standard by which the Human Rights Act should be judged, then it appears likely that it will be found wanting. A Bill of Rights must protect the rights of minorities at all times, and be entrenched so that there must be an overwhelming majority in favour of change. The Human Rights Act has no further security than the hesitancy of certain voices in the Houses of Parliament to retreat so soon from the step forward it represented. Should the Government, with the likely support of the Opposition, seek to derogate from the Convention then there is nothing in UK law to prevent them, and only external political pressure to encourage a speedy return to international human rights standards. I would agree that there is certainly room for improvement here, and if the aim of the Human Rights Act was to encourage scrutiny and discussion of Government policy then I think that aim, at least, has been achieved. The ideal, of an independent and impartial judiciary adjudicating on issues of human rights and holding the Legislature and Executive to the standards of rights set out in the Convention, is still attainable. At least, the conservative judiciary Griffiths saw appears to be changing; they seem more keen to defend rights and liberties and shown themselves willing to issue declarations of incompatibility and judgements adverse to the state where they felt it necessary. However, as long as this is an unequal partnership, and their independence and discretion is fettered by the ability of a Parliament subject always to the ebb and flow of public opinion to legislate to limit it, I do not think that the Human Rights Act can ever be a Bill of Rights for the United Kingdom.
Bailey, SH, Harris, DJ, and Ormerod, DC, 2001, Civil Liberties Cases and Materials, 5th Edition, London: Butterworths
Fenwick, H, 2002, Civil Liberties and Human Rights, 3rd Edition, London, Cavendish Publishing
Robertson, Geoffrey, Freedom, the Individual and the Law, 1993, London: Penguin Books
Lord Lloyd, Modern Law Review (1976) MLR 121 at 112-3
Starmer, K, Two Years of the Human Rights Act, 2003 NLJ 1 14-23
Waldron, J, ‘A rights-based critique of constitutional rights.’ (1993) 13 OJLS 18
The Scotsman, ‘Human Rights Act May Be Amended In Crackdown’, August 13th 2005, pg 7.
The Guardian, ‘Judges to be told to act on deportations; Government risks clash on human rights.’, August 12th 2005. pg 1
Tories target Euro rights convention, Online: http://news.bbc.co.uk/1/hi/uk_politics/1617668.stm Accessed 14.08.05
THE DAILY TELEGRAPH(LONDON) August 10, 2005, Wednesday, Judges must bow to the will of Parliament; Michael Howard
A and X and Others v Secretary of State for the Home Department  UKHL 56
AG v Guardian Newspapers Ltd (No. 2)  1 AC 109
Brind App No 18714/94, 77 ADR 42 (1994)
Brogan (1989) 11 EHRR 117
Chahal v UK (1997) 23 EHRR 413
Gerry Adams and Tony Benn v UK App No 28979/95 and 30343/96 (1997)
Handyside v UK ECtHR A 24 (1976), 1 EHRR 737
Lustig-Prean and Beckett v. United Kingdom, 29 Eur. H.R. Rep. 548 (1999)
Malone v Metropolitan Police Commissioner  Ch 344
McLaughlin v UK 18 EHRR CD 84
Olsson v Sweden A130 para 67 (1988).
R v Offen  1 WLR 253 (CA)
R v Secretary of State for the Home Department ex parte Anderson  UKHL 46
Stafford v UK App no 4629/99
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