The Conservatism of the Human Rights Act

Chapter 2

The Human Rights Act, passed by a Labour government in 1998 and
brought into force in 2000, is a fundamentally conservative piece of
legislation. It is not just conservative with a small “c”, however. To the
extent that it has any basis in party politics, it should be regarded as a
creation, not of New Labour, but of the Conservative party. Because the Act is both conservative and Conservative, it should be welcomed by Conservatives today and not reviled by them.

What the Human Rights Act says

Given the degree of public misunderstanding that has arisen about the
Act, one might think that it was a long and indigestible piece of
legislation. In fact, however, it is brief, essentially consisting of two
elements.

The first is a list of rights and freedoms applicable to all people subject to UK law. These are all taken verbatim from the European Convention on Human Rights, which was ratified by the UK in 1951. They include a right to life; a prohibition against torture, slavery and forced labour; various rights to liberty and security of person; rights to a fair trial and not to be punished without law; a right to respect for private and family life; rights to freedom of expression and to thought, conscience and religion; rights to freedom of association, assembly and marriage; and a prohibition on discrimination. Two further protocols contain rights to property, education and free elections, and a formal
abolition of the death penalty.

The second element of the Act consists of a set of legal mechanisms
by which these Convention rights are to be interpreted, followed and
enforced by UK public authorities. Existing legislation is to be read and
given effect to in a way which is compatible with the Convention rights, so far as it is possible to do so. Judges are required “to take account of” relevant decisions of the European Court. Ministers are required to state on the introduction of new legislation whether or not it is compatible with the Convention rights, and public authorities are required to act in ways compatible with them.

Where a relevant UK court considers that the terms of a statute
cannot be interpreted compatibly with the Convention rights, it can
issue a “declaration of incompatibility”. As the Act makes clear, a
declaration of incompatibility has no formal effect whatever on the
statute: the government may choose to amend the law so as to make it compatible with the Convention rights, or not. In practice, so far at least, it has always taken the former option.

History

This is a bare factual summary of the content of the Human Rights Act.
For interested readers I will include an abridgement of the Act,
containing the full text of all the Convention rights, in an Appendix.
But even this short description should already make one crucial point
clear. This is that the rights and freedoms enumerated in the Act are all
directly drawn, indeed restated in terms, from the European Convention
on Human Rights. And it is a matter of historical fact that the European
Convention was in large measure the creation of two British
Conservative politicians: David Maxwell Fyfe, later Lord Kilmuir, and
Sir Winston Churchill.

The European Convention was opened for signature on 4 November
1950 in Rome. Britain signed it on this date and was the first state to
ratify the Convention in March 1951, without reservations. It formally
entered into force in September 1953, and was extended later in 1953
to include 42 British dependencies. At present the Convention covers
the 47 members of the Council of Europe, including approximately 800
million people.

As we shall see, the Convention itself, and so the Human Rights Act,
has its intellectual roots in the English common law, going back to the
13th century. But the need for such an instrument, and for its
accompanying institutions assumed special urgency during the Second
World War. As early as 1942 Winston Churchill as Prime Minister had
looked ahead to consider the political landscape of continental Europe.
With Germany defeated, he believed the only realistic way to hold a
dominant USSR at bay would be through what he termed a “Council of
Europe”, led by Britain. This, he believed, would be a bulwark against
any new totalitarianism.

After his landslide defeat in the 1945 General Election, Churchill
remained true to this idea, leading the public argument for European
solidarity. He became Chairman of the new United Europe Movement.
He commissioned his son-in-law Duncan Sandys to organise a major
international congress in May 1948 in The Hague, in the face of
opposition from Attlee’s Labour government. And in a rousing opening
speech at the Hague conference he specifically advocated a Charter of
Human Rights, “guarded by freedom and sustained by law”.

Churchill believed that British victory in the recent war was above all the victory of certain basic values – values that were the cornerstone
not merely of Western civilisation, but of civilisation as such. The
purpose of the Charter, or Convention as it became, would be the
fundamentally conservative one of protecting and extending those
values. This approach was later made absolutely explicit in the formal motion proposing the new Convention, which stated that the
convention “would maintain intact the human rights and fundamental
freedoms actually existing in the respective countries at the date of signature”.

Churchill’s bold proposal was adopted. The British lawyer and politician David Maxwell Fyfe then became the chairman of the new Council’s legal and administrative council in August 1949, as well as serving as rapporteur on the committee drafting the European Convention on Human Rights. A former minister in Churchill’s government and then deputy Chief Prosecutor at Nuremburg, Maxwell Fyfe was well qualified for the arduous task of negotiating the language of the Convention rights, and then shepherding them through the various national governments, including that of the UK.

Burke and Human Rights

There is thus a clear Conservative party provenance to the rights
enumerated in the Human Rights Act. But too much should not be read
into this, of course. Part of the Labour government’s opposition was
motivated by jealousy at Churchill’s pre-eminent role in the new
Convention. Moreover, Churchill’s own position on European unity was
never absolutely clear, especially as regarded the UK’s own involvement. And there were also genuine concerns on all sides as to whether the new Convention might unhappily fetter the sovereignty of the UK government itself.

So the fact that the Human Rights Act has a Conservative pedigree
hardly means it is a conservative piece of legislation. Indeed the
argument is often made the other way: that statutory legal rights as such are fundamentally unconservative because they are innovations contrary to the traditions and spirit of the common law, and because they infringe the principle of parliamentary sovereignty. After all, was it not Burke himself who denounced the “rights of man” as harbingers of revolution in his Reflections on the Revolution in France (1790), saying “Against these… rights of men let no government look for security in the length of its continuance, or in the justice and lenity of its administration”?

This is a complex issue, in which absolute clarity is not available. But
on a fair reading of the evidence, this objection is in fact the opposite of the truth. In the first place, Burke was not opposed to rights as such, only to “abstract” or “metaphysical” rights. These are rights which have been divorced from a context of legal custom and tradition, rights which mankind is somehow deemed to have enjoyed in an original state of nature. They are uncertain in their full meaning, and potentially revolutionary in their effects. In sharp contrast to these abstract rights, however, Burke praises “recorded” rights; that is, rights which have been elaborated through the common law. In a crucial but often neglected passage from the Reflections, he says:

Far am I from denying in theory; full as far is my heart from
withholding in practice… the real rights of men… If civil society be
made for the advantage of man, all the advantages for which it is
made become his right… Whatever each man can separately do,
without trespassing upon others, he has a right to do for himself; and
he has a right to a fair portion of all which society, with all its
combinations of skill and force, can do in his favour.

The last two sentences are a masterly statement of Burke’s Old Whig or “compassionate” conservatism.

So, then: what distinguishes recorded from abstract rights? Simply
this: recorded rights are, in effect, summaries of human experience. They are established, they are well-understood, and they have been filtered, elaborated, nuanced and defined in a huge range of different contexts through countless legal judgments. It is in their status as the product of the common law, of the judge-made law of the land, that Burke sees their legitimacy; and in their protection against the tyranny of the majority that he sees their value. From time to time these rights or freedoms may be codified or recorded in statute, and for Burke this is to be welcomed when such a statute operates, in his words, on the
principles of the common law.

Thus it is crucial to note that Burke is not opposed to change as such.
Far from it: for him acceptance of change is the indispensable corollary
of commitment to the established order. As he famously put it “A state
without some means of change is without the means of its conservation.” Thus, far from reviling the Glorious Revolution of 1688, Burke celebrated it as the necessary and limited change required to preserve the constitution. For him, then, the continuing substance in the body politic – the framework within which any change must occur – is the British constitution, and specifically the common law.

Blackstone, Dicey and the Legal Tradition

Burke would not have considered this line of thought as in any sense
innovative, and indeed he would have been appalled at the idea. On the contrary, he regarded himself as writing from within the very heart of British legal, constitutional and specifically parliamentary traditions.

He was correct. For the greatest British legal authorities have always
recognised that basic rights are an essential part of the rule of law. Article 39 of Magna Carta 1215, for example, contains the prohibition “No freemen shall be taken or imprisoned or disseised [expropriated] or
exiled or in any way destroyed, nor will we go upon him nor send upon
him, except by the lawful judgement of his peers or by the law of the
land” – the basis of Articles 5 and 6 of the Human Rights Act today.

Burke’s readers would not have needed to look as far back as the 13th
century for confirmation of this point, however. For the wider argument
had in fact been made very forcefully three decades before the
Reflections, with the publication of the magisterial Commentaries on the
Laws of England (1765-9) of Sir William Blackstone.

Blackstone’s was the first full-scale presentation of English law, and
specifically the common law, for over 200 years. It had three huge merits: it was systematic, presenting the law in a coherent way from first principles; it was written in English, not Latin; and it was aimed not merely at lawyers but at squires, merchants and other educated laymen. It went through eight editions in 11 years, and was vigorously circulated not merely in Britain but in the American colonies. It has had an inestimable influence on the development and spread of the rule of law in the English-speaking world.

For Blackstone, rights are not merely an accretion to the rule of law:
they are intrinsic to it. In his words “the principal aim of society is to
protect individuals in the enjoyment of those absolute rights, which were invested in them by the immutable laws of nature … Hence it follows, that the primary end of human laws is to maintain and regulate these absolute rights of individuals.” At the end of the CommentariesBlackstone gives a rather Whiggish account of the origins of these rights and liberties, encompassing Magna Carta, the Petition of Right, the Habeas Corpus Acts, the Bill of Rights, and the Act of Settlement. He thus links both Parliament’s constitutional function and its own history to the growth of individual freedoms and restraint on the Crown.

In Blackstone’s analysis, there are three “absolute” rights: the right to
personal security, the right to personal liberty, and the right to private
property. These are rights of individuals, not groups, and they are
specifically chosen in opposition to different forms of tyranny and
oppression. Moreover, they are to be read widely. Thus the right to
personal security includes “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation”, while the right to personal liberty includes “the power of removing one’s person to whatsoever place one’s inclination may direct without imprisonment or restraint, except by due process of law”. And Blackstone notably argued that these primary rights were in turn supported and protected by a range of subordinate rights, such as the right of subjects to access to the courts and the right of petition. These protections are the forerunner of the modern idea of that the law should provide effective remedies, as in sections 7 and 8 of the Human Rights Act.

This broad line of thought was taken up, developed and given a
characteristic twist by the great constitutional theorist A.V. Dicey
towards the end of the 19th century. As with Blackstone, Dicey’s
Introduction to the Study of the Law of the Constitution (1885) has been massively influential ever since first publication.

For Dicey the British constitution rested on two foundations:
parliamentary sovereignty and the rule of law. Parliament had unfettered power as the supreme law-making institution. But it was itself held to certain unchanging principles that constituted the rule of law, and these guaranteed the rights and liberties of the individual. These principles were that no-one could be punished except by court order with due process and for a distinct breach of the law; that everyone was subject to law and to the jurisdiction of the courts; and that the general principles of the constitution were derived from judicial decisions in court, that is from judge-made law.

Dicey also picks out three particular rights: the rights to personal
freedom, to freedom of discussion and to public meeting or freedom of
association. The latter two are not those of Blackstone, but Blackstone’s other rights, to personal security and private property, are clearly assumed elsewhere in Dicey. Where the two theorists differ is that for Dicey these rights, indeed rights as such, have no special status. There are no “absolute” or foundational rights. Rights may be well-established, but ultimately they remain the products of judge-made law, of the normal processes of courtroom adjudication. As such they can change: slowly as legal practice evolves, or rapidly through Act of Parliament. For this reason, perhaps, Dicey is generally rather dismissive of formal statements, charters or guarantees of rights: his thought seems to be that if the rights in question are not sufficiently embedded in the law, customs and manners of a nation, then formal guarantees are likely to be of little value.

But Dicey’s position is slightly less clear than it might be, for two
reasons. The first is the obvious point that formal guarantees may
themselves be a way to strengthen the customs and manners of a nation, by recording a public and social commitment to certain basic values.

The second point is more subtle: it is that regardless of Dicey’s official
position there clearly are some rights that he takes to be, if not
entrenched, then very well-established indeed – these are the rights
assumed in his conception of the rule of law itself, such as the right to
due process. A more fully-fledged conception of the rule of law might
identify other such rights, and point to them as being wholly or partly
constitutive of the rule of law. Parliament would preserve its own
unfettered sovereignty, but there would be something self-defeating
about the exercise of that sovereignty in the abolition of those basic
rights. I will return to this issue later.

What Rights are Not

Unsurprisingly, then, Burke, Blackstone and Dicey share a broadly
consistent view of English law and the importance of certain established rights and liberties within it. Not only that, they see it as a primary purpose of government and of the rule of law to protect the liberties of the individual. Good government is maintained by constitutional arrangements that are deliberately slow-moving and yet flexible.

This line of thought is a profoundly conservative one. To see why,
consider what these rights are not. They are not natural, pre-ordained,
or the products of God’s law. They inhere in individuals, not in groups
or classes. They are not, by and large, economic or social in character.
They are not divorced from, but are the products of, legal tradition and
social custom. They are not conceived of in the abstract or grounded in a priori reflection, but based on experience. They are not independent of specific legal remedies, but backed by them. They are not entrenched against Parliament as superior law, but explicitly acknowledge the sovereignty of Parliament.

By contrast, there is a liberal or radical conception on which human
rights are all or many of these things. The French revolution was founded on such a conception, and Burke’s genius was to predict in advance that, and how, such a revolution would end in disaster. But the American revolution is arguably a more interesting case, because it allied radical rhetoric in the style of Paine with radical innovation in its entrenched and written constitution, and specifically the Bill of Rights, and then grafted the whole onto English legal traditions directly and recently inspired by Blackstone himself. From this heady mixture came, in the course of a century, not merely the extraordinary energy of American statecraft, but a powerful and distinct conception of national identity, of what it was to be American at all.

And this contrast in turn brings out two final points. The first is that
the Human Rights Act, and indeed the European Convention and the
Universal Declaration of Human Rights 1948, clearly arise from the same English or Anglophone legal tradition discussed here. This is a great British contribution to the worldwide rule of law.

But secondly, there is an important contrast with the USA. There the
status of the constitution as entrenched and superior law means that
judges in State or Federal Supreme Courts can strike down legislation
which they deem to be in conflict with the Constitution. This power
has been used many times over the past two centuries to remove laws from the statute book, including laws that would now be deemed both
reactionary and progressive. Its effects have on occasion been extremely controversial, as in the abortion debate with Roe v. Wade or in the notorious Dred Scott case which ruled that slaves were not US citizens, but property. Because the judges can strike down laws, the bench has become heavily politicised.

The same is not true in this country. Under the Human Rights Act
the principle of the sovereignty of Parliament is preserved. Parliament
passed this legislation, and could repeal it within days if it so desired.
This would leave the UK as a signatory to the European Convention and
various other legal instruments protecting legal rights, but again
Parliament could in principle quickly drop those commitments. Under
the terms of the Act the most the courts can do is to issue a declaration of incompatibility, and Parliament is under no obligation to change the law to make it compatible. There is in fact virtually no recorded case in British legal history in which the courts, without the authority of Parliament, have invalidated or struck down a statute.

The courts thus remain independent and at some distance from the
political fray. It is sometimes said that section 3 of the Act gives judges the power to exceed Parliament’s intention by re-interpreting legislation according to the Convention rights. But section 3, which requires legislation to be interpreted in a way that is compatible with the Convention rights, is specifically limited by the phrase “so far as it is possible to do so”. And in fact the courts have deployed this power
cautiously, with great respect to procedural fairness and the rule of law, and often specifically with some consideration of what Parliament
intended for the given legislation.

The Human Rights Act thus operates in a peculiarly conservative
way. It confers no new right which has not already been long recognised in common law, or to which the UK has not already long been committed. Its rights are not inviolable but can be set aside. Where there is an incompatibility with rights, it leaves it to Parliament to decide how to resolve that incompatibility, and only if it chooses. A more conservative approach could hardly be conceived.

The Conservatism of the Human Rights Act

Let us sum up. The argument of this chapter has been that the Human
Rights Act is a conservative, and indeed Conservative, piece of legislation on three grounds: those of history, of philosophy and of law. Its rights are basic, established and generally well understood. It is not alien to but profoundly in keeping with our legal and constitutional traditions. It is not entrenched. It is used in British courts with British judges. For these reasons it should be widely supported by all segments of British political opinion, and especially by the Conservatives.

Thus in later chapters I will look at the various criticisms that have
been made of the Act; at different myths that have arisen, which have
undermined public feeling towards the Act and its implications; and at
alternative approaches that could be taken to the preservation of
personal rights and freedoms. My contention is not that all is well with
the public understanding of human rights. On the contrary, there are
some serious problems to be addressed, and I will look at these. But
the Act itself is not the problem.

For the present, however, I close this chapter with a series of
questions to those who would prune back or repeal the Human Rights
Act:
1. Which rights would you propose to cut? The right to life? The
right to liberty and security of person? To freedom of
expression and association? The prohibition on torture?
2. If the Human Rights Act is repealed, then the same cases will
fall under the European Convention on Human Rights. Would
you propose to leave the European Convention too? Virtually
no reputable commentator has suggested this step.
3. And if you would adhere to the Convention, then is it really
preferable that these cases should be decided by the distant
European court in Strasbourg at far greater expense than now,
rather than in this country by British judges? Why?
These questions are hard for anyone to answer persuasively and, I
would say, impossible for conservatives to do so.

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