Addressing the Critics

Chapter 3

The previous chapter made the positive case for supporting the Human
Rights Act. I turn now to address the many criticisms that have been
levelled against it.

It may be helpful to be clear from the outset about three things. First,
I do not claim that the Act is a perfect document, or a panacea for
injustice in the UK, only that it is a good piece of legislation. Secondly,
even where a criticism of the Act is misplaced, it often springs from
important wider public concern about issues such as rights inflation.
Here my argument will be that the Human Rights Act is the wrong
target, however, and that these issues should be tackled in other ways.

Thirdly, I will assume in what follows that there is no case for the
UK to leave the European Convention on Human Rights. This move has
never been seriously advocated by any mainstream political party. Not
only was the UK the legal and historical inspiration for the Convention
and its first signatory, as noted, but departure would send a message to the world that individual freedoms, personal rights and indeed the rule of law itself can be set aside when they are inconvenient.

1. “Bad people should not have rights”

The first criticism is the most basic: that bad people should not have
rights. It may be that someone has committed a serious criminal offence, or a repeated series of minor offences, that they are a known criminal from another country, or perhaps even just that they are strongly suspected of criminal intent: in such cases the person concerned should not enjoy the protections afforded by the Human Rights Act.

This criticism should be rejected out of hand. The rights in question
are all or almost all the basic prerequisites of our law. In the words of
Horace Rumpole, it is the golden thread of British law that people are
innocent until proven guilty in a court of law. Of course the Act is most
invoked on behalf of those at the margins of society – this is only to be
expected. But these basic rights protect us all. Abolishing them would
give the state free rein to trample on the citizenry.

2. “The Human Rights Act hampers the fight against terror”

A more persuasive variant of the first criticism goes like this: of course
there can be no question of abolishing such basic rights and freedoms as such. But the Human Rights Act itself is clearly hampering the fight
against terror.

Thus the Belmarsh decision prevented the state from detaining
terrorist suspects without trial; the Home Secretary has been prevented from deporting known terrorists because of concerns that they would be tortured; and some control orders have been rejected by the courts where suspects have not been given any information about the nature of the case against them. So the Human Rights Act needs to be pruned back in order to allow effective prosecution of the war on terror.

There are several difficulties with this line of thought, however. The
first point is that it rests on a factual claim which cannot be tested – that the fight on terror has been materially hampered by the courts. Of
course the Home Secretary’s life may have been made a bit more
difficult. But this is not at all the same thing as saying that the fight on
terror has been hampered. It may actually have been assisted by the
worldwide legitimacy and reputation for fair play of British justice, as it
has often been in the past, for example with the centuries-old British
prohibition on torture. And it is noticeable that the US seems to get by
fairly well in combating terror, despite the Bill of Rights and its own
extremely vigorous culture of civil liberties – notwithstanding recent
attempts to circumvent the Bill of Rights by outsourcing interrogation
at Guantanamo Bay or via “extraordinary rendition”.

But say the factual claim is true. Would this give sufficient grounds
to prune back these basic rights and freedoms? Certainly not. There are many laws that inhibit the state’s ability to catch criminals, but we
accept them because they are valuable for other reasons. Moreover, the key rights in question already contain explicit limitations and the idea of proportionality, in recognition of the balance that needs to be struck between the interests of the state and those of the citizen. Thus Article 8 prohibits public authorities from infringing the right to respect for family and private life – except on the grounds of “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Those are very significant carve-outs.

Even if these points were mistaken, however, to warrant this extreme
step it would still need to be shown to a reasonable standard that the
British state was already using all the effective legal means at its disposal in the fight against terror. But I know this is very far from the case – on the contrary, there has been a huge amount of incompetence in this area, notably in conceiving and managing immigration policy.

3. “The Human Rights Act undermines Parliament”

The third criticism has been much voiced by politicians on all sides of
the debate. This is that the Human Rights Act undermines the
sovereignty of parliament, by fettering it with rights that constrain its
actions, and by encouraging the judges to create new law.

There can be little doubt that as a practical matter Parliament is less
autonomous now than it was in, say, the time of Gladstone and Disraeli.
It has voluntarily restricted its own freedom of action over many years,
notably by joining the European Economic Community in 1973. But
the principle of parliamentary sovereignty, as a principle, remains as
inviolate now as it was in Dicey’s heyday. As a result, the Human Rights
Act could be repealed tomorrow if Parliament so wished.

Moreover, it bears restating that the Human Rights Act confers no
new right which has not already long been recognised in common law,
or to which the UK has not already long been committed. It enables no
new concepts or issues to be considered by judges which they were not previously able to consider. So if any undermining of the principle of
parliamentary sovereignty has occurred, it has not been done by the Act. Not only that: the Act demonstrates its commitment to parliamentary sovereignty on the face of the legislation. Indeed it preserves that sovereignty, by way of the supremely British compromise of a declaration of incompatibility. The contrast is, again, with countries in which rights are set forth as superior law and judges have the ability to strike down or annul primary legislation.

And the implication that British judges are an alternative source of
legislation is in general untrue. There is of course a broad sense in which the common law is “judge-made” law, as it has been for centuries. This is because any court judgment itself becomes part of the record, and so part of legal precedent. It was Lord Reid who in an essay on “The Judge as Lawmaker” in 1972 famously stated that the old idea that judges did not make law but simply declared it was “a fairy tale … But we do not believe in fairytales any more.” Indeed in legal cases where the question at issue has not been previously raised, or where there is a lack of clarity in the law, any decision of the court will have the effect of “making law”.

But this is very far from the judges being “legislators” in any genuine
sense. In fact there is remarkably little evidence that judges have
creatively elaborated new law, or been subject to any political influence in their decisions. To take one example, it might have been expected that the Law Lords would reject the use of the Parliament Act 1949 to push through the hunting ban, given that the Parliament Act was hardly designed for this kind of legislation and the issue was extremely politically controversial. Yet they found unanimously for the government on this issue.

4. “The Human Rights Act fuels rights inflation”

A fourth criticism is that the Human Rights Act has fuelled “rights
inflation”. That is, it has created a whole host of new legal rights, which have encouraged people to file bad or frivolous claims, stimulated a public culture of grievance and litigation, and lined the pockets of golddigging lawyers.

Perhaps more than any other, this issue is the subject of huge
misrepresentation and misunderstanding. There is clearly huge public concern about the growth of a litigious, timid, safety-first culture of
political correctness in Great Britain today. But very little of this has
anything to do with the Human Rights Act.

Contrary to public expectation, there has not been a flood of
litigation under the Act. Recent figures show that human rights legal
actions peaked in 2002 with 714, and fell to a low of 327 cases in 2008. And, again contrary to public expectation, there have been remarkably few declarations of incompatibility under the Act: just 26 in its first eight years, of which eight have been overturned on appeal. Instead, there has been an explosion of stories in the popular press about vexatious claims, very few of which in fact make it as far as the courtroom, still less secure a favourable judgment. These are the Myths of the Human Rights Act, and I analyse them in more detail in Chapter Four.

At a conceptual level, it is useful to distinguish between rights
elaboration and rights inflation. Elaboration is a normal process whereby
new areas of law are filled out over time by court judgments, which
clarify how the law applies in different contexts. Sometimes the effect
is to extend the reach of law, sometimes to hold it back. In the area of
personal rights and freedoms, a recent example is the Law Lords’
judgment that the Human Rights Act applies in principle to British
soldiers on the battlefield. The battlefield has been understood to be
subject to law for over a hundred years. What this judgment does is to
make clear that soldiers have certain basic legal rights under the Act,
such as to adequate kit and training.

Rights inflation is something else. It has little to do with the Human
Rights Act, as we have seen. But I would argue that it is a serious
problem, created by bad legislation and by the present government’s
penchant for turning even trivial entitlements into “rights”. This spills
over into public discussion of the basic rights and freedoms of the
individual, and trivialises and debases it. If there is a culture of grievance at present, then this is its source.

5. “Rulings from the European Court should not be part of British law”

The fifth criticism is that the Human Rights Act in some way imports European judgments into British law; or makes the UK subject, or more
subject, to the European Court of Human Rights in Strasbourg. It plays
on concern among the general public that the UK is dominated by the
European Union, and among some commentators that European court
judgments are of lower quality than those rendered by British judges.

Again, however, we need to be clear about the facts. Almost all of
these rights are not of European origin, but were developed through the English common law, as we have noted, in some cases hundreds of years before their European counterparts. The Article 3 prohibition on
torture, for example, arises from the common law, which even in the
15th century seems to have regarded torture both as morally degrading
to all involved and as a source of unreliable evidence. The Court of Star
Chamber continued to receive evidence from torture in the early 17th
century by exercise of the royal prerogative, but the lawful sanction of
torture was ended in 1640 in England, when the Star Chamber was
abolished by the Long Parliament. This step was then reinforced in the
Bill of Rights 1689 with its prohibition on “cruel and unusual punishment”, a phrase which in turn made its way into the US Bill of
Rights. But the legal use of torture persisted in many European countries until the 18th century, and in some until the 19th.

The second fact to note is that the European Convention is not a
treaty of the European Union. The Human Rights Act does not import
European judgments into British law: it does the opposite. It allows
British courts to decide cases concerning basic rights and freedoms
themselves, instead of their being referred to the European Court as was required before 2000. It thus brings justice closer to the ordinary person, and makes it more accessible and less expensive.

Furthermore, British judges are only obliged by the Act to “take account of” rulings by the European Court – a minimum condition, given
that these are Convention rights – not to follow them. It is in the nature of courts that they will occasionally disagree, and this is part of the value of the appeal system. Thus the European Court has occasionally made a different decision to the Law Lords on appeal; one important recent example is the S and Marper decision, where the Court decided, in effect, that the Lords were wrong to uphold the Government’s blanket policy of taking and keeping DNA samples from innocent people. However, far more often the Court has backed the Lords. And of course many more cases decided by British courts do not make it to the European Court in the first place because it is understood that they would have no chance of success. In many others, of course, an applicant will have been successful in the local courts and have no need to go to Strasbourg.

All this would change if the Human Rights Act were abolished.
Abolition would do away with the ability of British claimants to seek
justice in British courts with British judges. All such cases would need to be taken to the European Court, with huge consequent cost and delay. There would be none of the current scope for British judges to respect British traditions, concerns and values in their judgments: the European Court would simply apply the law as they saw it. Far from maintaining the relative autonomy of British law, abolition of the Human Rights Act would reduce it.

There is a wider point to be made here. Many people, and certainly
many Conservatives, are concerned about what they see as growing
European federalism. But this has little or nothing to do with the Human
Rights Act. It is a political problem, which requires political solutions. The Act has the effect, not of exposing, but of protecting both the broader British legal tradition of respect for individual rights and freedoms, and more current local concerns from decision in foreign courts.

6. “The Human Rights Act imposes huge costs on business”

The sixth line of criticism is that the Act imposes unacceptable costs on business, because of the extra expense involved in respecting the rights of employees, and in litigation.

It is true that the Act imposes some cost on the public sector, because
it requires our public authorities to comply with the Convention rights.
But these costs are not new costs: they would have been faced anyway as local government, the NHS, schools and other public bodies became aware of the UK’s obligations under the Convention.

The Act itself imposes little if any cost on the private sector. Almost
all the spiralling costs which now beset British businesses, especially
small and medium-sized businesses, have arisen from other Government
legislation, and from EU legislation. The spreading of myths about human rights by the press has added to these costs, by encouraging
frivolous complaints against companies, thus creating a situation in
which companies feel compelled to take legal advice rather than deal
with such concerns in a common-sense way. Indeed most of these claims have less to do with human rights than with the desire to escape onerous regulatory controls.

7. “The Human Rights Act is ineffective”

I can briefly address a seventh and final criticism of the Act: that it is
ineffective in operation. This has been said both by those on the
authoritarian right or left who wish to ignore or undermine the Act, and
by those of more libertarian stamp who wish to make it stronger.

The claim of ineffectiveness is a slightly paradoxical one given that
so much other criticism focuses on the supposedly malign effects of the
Act; and in fact it is not true. As noted, the Act has caused the
Government to revise its position on indefinite detention without trial
and on control orders. It has enhanced personal privacy. It has
significantly increased the accessibility of justice to the British people
on issues affecting fundamental rights and freedoms. These are not small achievements, and they underline that in its modest, conservative way the Act has proven to be rather effective. Of course, this is not to say it could not be improved – or be more vigorously supported by politicians.

These, then, are seven lines of criticism that have been advanced
against the Human Rights Act. None of them succeeds. In several cases they articulate real and pressing political concerns, which have been stoked by the press, by government actions or by legislation, especially over the past decade, and which require political solutions. In several cases abolition of the Act would in fact worsen the original problem, rather than address it.

It is, finally, notable that none of these criticisms is a reason to adopt a British Bill of Rights. I will turn to this issue in Chapter Five. In the next chapter, however, I look at the different myths that have stoked up public concerns about human rights, and attempt to put the record straight.

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.

Why the Human Rights Act Matters

Chapter 1

I will show that the European Convention of Human Rights (ECHR), which the Human Rights Act 1998 (HRA) incorporates into British law, is an impeccably Conservative document. It was inspired by Sir Winston Churchill, drafted in large measure by the Tory politician David Maxwell Fyfe (later Lord Chancellor Kilmuir), and ratified by Britain in March 1951, the first nation to do so. And I will argue that all of the great ideas embodied by the European Convention – including those of freedom under law, restraint on the power of the state and a deep understanding of the link between individual liberty and private property – are based on ancient conservative beliefs.

I will also show that the repeated claim that the HRA is a charter for socialism and state interference is quite false. In fact the HRA is a charter against socialism and state interference. This is why the post-war Labour Prime Minister Clement Attlee was suspicious of the European Convention and only supported it with reluctance. It also explains why Tony Blair and Jack Straw, who were swift to introduce the HRA after the 1997 election, in due course became such angry critics of it. Prime Minister Blair believed in a strong, powerful and centralised state and was in general indifferent or even hostile to the rights of minorities; the HRA hindered his government from carrying out some of its most populist and authoritarian policies.

It is at first sight puzzling that, officially at least, the Conservative  Party should be opposed to the HRA. Indeed a pledge has been made to repeal the HRA if the Conservatives win the next election. A number of factors account for this paradox, which arise from a misreading of the origins, motivation and language of the European Convention.

The Conservative Party has always been properly sceptical about abstract rights and entitlements. This scepticism was set out most  famously by Edmund Burke, whose Reflections on the Revolution in  France, published in 1790, is a core text for the Conservative party in its current incarnation. Burke challenged the enlightenment proposition that human beings could or should lay claim to the possession of abstract rights such as those of Liberty, Equality and Fraternity. He did so not because he denied the existence of rights as such, but because he saw them as embedded in and grounded by tradition, experience and human institutions.

Burke warned of the dangers that would follow if these institutions were overturned and a system of natural rights set up in their place. These warnings were shown to be hideously accurate with the bloodshed and terror that followed the French revolution, and later the Bolshevik  revolution of 1917. So it is only to be expected that thoughtful Conservatives should be chary of a new system that at first sight appears so hostile to the English system of common law, which has set the framework for justice in this country for some nine hundred years.

However, as I will show in the posts that follow, Conservative  scepticism about the HRA is based on an erroneous interpretation both  of the European Convention, and also of the teaching of thinkers such  as Burke. The truth is that the Convention was framed by British jurists, working within a common law legal tradition stretching back past the US Bill of Rights 1791 to encompass our own Bill of Rights 1689, and the Petition of Right 1628. So it is not surprising that its essential principles – including the right to a fair trial, the right not to be held  without charge, and the right not to be subject to cruel and unusual  punishment – are manifestations of the English common law as it took  shape during a centuries-long jostling for power between the different estates of the realm.

In the 20th century the great British war leader Sir Winston Churchill was determined that these freedoms, for him the essence of civilisation as such, should be publicly set forth in the European Convention. He saw this as a response both to the barbarity of fascism, then a recent and appalling memory, and to the sinister threat to human freedom posed by the Soviet Union in the post-war period. The ECHR thus marks a vital codification of the common law, not its repudiation.

A second objection to the HRA is that it is not really about justice at all as properly understood, and that its real purpose is to insinuate into the British legal system a left-wing social and political agenda.

The criticism goes right to the heart of the political debate as to the nature and purpose of the law itself. The conservative vision of law is, broadly, a procedural one. Conservatives insist that the rules should be observed, wherever they may lead. They attend to history. They are fastidious in distinguishing between different institutions. They demand impartiality of administration, equality of access to justice and a ban on special treatment. For them the proper means to address public issues of social inequality is simply through politics. Individual freedom is preserved through the rule of law, backed by the state as final enforcer. Human society becomes what the philosopher Michael Oakeshott called a “civil association”: a group of people who agree to subject themselves to a set of common rules of conduct, so that they can better pursue their own various lives and interests with as little interference as possible.

For the left, by contrast, the focus is less on means than on ends. Legal procedure is subsumed in the quest for social justice. At its most utopian, this view holds that any institution – national or local, public or private – is potentially available to be used to pursue social goals. Thus even the integrity of the judicial system itself is of interest only insofar as it serves to secure equality of outcomes and to enforce social justice.

In Oakeshott’s phrase, human society becomes an “enterprise association”: made subject to some overriding purpose which takespriority over private interests and which stands ready to sacrifice individual freedom for the greater good. It is in this sense “rationalist”, in seeing politics as simply a series of problems to be solved, if only a suitably detailed and comprehensive abstract plan existed to do so. An enterprise society is moralizing and ambitious. It is, so to speak, always on a war footing. In such a society the rule of law is always at risk.

In these terms the European Convention on Human Rights and the Human Rights Act are exquisitely conservative documents. The European Convention nowhere asserts that human beings have a right to equality of economic status, possessions or material comfort – it is silent on these questions. Its rights largely amount to a set of limitations as to how the state is permitted to behave towards those within its jurisdiction. For instance, it insists the state cannot arrest someone without good cause, determine what kind of books they read or unlawfully sequestrate their property. These are without exception rights which give ordinary citizens the ability to carry on with their private and family lives as best they can without interference from the state, or anyone else.

By contrast the left has historically demanded a much more activist kind of rights culture. It demands so-called socio-economic rights, such as the right to work. Furthermore, it has a fundamentally collectivist view of rights, placing the state or the “common good” above all else. When the Soviet Union guaranteed certain human rights in its 1977 Constitution, it warned that “citizens’ exercise of their human rights must not harm the interests of society, the state, or other individuals.”

By contrast the European Convention, scrupulously drafted and rigorously defined, provides no comfort for socialist conceptions of social or economic justice. It is implicitly sceptical about the power of the state. It falls on the side of civil, and not enterprise association; on the side, to use Churchill’s words in his Hague Congress Speech, in which the people own the government, and not the government the people.

The same is not true, however, of the European Union’s Charter of  Fundamental Rights, to which Britain was signed up in 2008 as part of the Lisbon Treaty. As I argue below, this document does indeed enfranchise as “rights” a host of secondary social and economic entitlements. Almost as alarming is the Government’s intellectually catastrophic Rights and Responsibilities Green Paper, published earlier this year. Contrary to its name, this legislation would introduce no new legal rights or obligations into British law whatever. But it would cloud the area with unenforceable and rhetorical statements of right, opening the way up to exactly the kind of “rights inflation” so feared by critics of the HRA. It is documents like these, and not the astringent and rigorous European Convention or the HRA, that pose the real legislative threat to liberty in the years to come.

A third Conservative criticism of the Human Rights Act is that it is part of an anti-democratic conspiracy because it supposedly devolves to a foreign court the task of interpreting British liberties: a task which should much better be carried out at home and which undermines the sovereignty of parliament.

This broad anti-federalist instinct is well-motivated and widely shared across the British political spectrum. Yet the specific criticism, when examined forensically in relation to the HRA, makes no logical sense at all. The first point to make is obvious enough, but frequently forgotten. The European Convention on Human Rights has virtually nothing to do with the European Union. It was ratified six years before the formation of the common market. And it contains no federalist agenda beyond a common commitment to human decency and liberty in the light of the great fight against totalitarianism of both right and left.

Indeed the overwhelming purpose of incorporating the European Convention into British law through the Human Rights Act is precisely so that decisions can be reached by British judges in British courts within the British legal framework, thus building up a body of British case law in this area. This is already happening, and there is already plentiful evidence that the European Court of Human Rights in Strasbourg is respecting the integrity of British judicial decisions.

The Conservative pledge to repeal the HRA, if carried out, would thus have the perverse consequence of moving the judicial process overseas. Unless the Conservative Party actually proposes to withdraw from the European Convention on Human Rights – and it does not – there is no avoiding this.

A fourth criticism of the Human Rights Act concerns national security. The most emotive argument against the HRA is the one used by Tony Blair and successive Labour Home Secretaries: namely, that the HRA impedes the ability of the security forces of the British state to fight the threat of terrorism. Indeed the period since 9/11 has been marked by a running argument between British politicians and British judges over counter-terrorism legislation.

The argument came to a head at the end of 2004, when the Law Lords ruled that Part 4 of the Anti-Terrorism, Crime and Security Act 2001 – which allowed the British Government to imprison foreign terrorist suspects without charge, thus undermining the ancient principle of habeas corpus – was incompatible with the HRA (the Belmarsh judgment). As a result the Government decided to find an alternative mechanism; and the situation was resolved, temporarily at least, with the introduction of so-called control orders in the Prevention of Terrorism Act 2005 which restricted the movements of suspects.

Claims that the HRA makes Britain less safe are untrue. The Human Rights Act requires the courts to balance human rights against safety and accepts that important rights may be restricted to protect national security. In the vast majority of cases it does not prevent those who pose a threat to our national security from being deported. What it does do is to prevent the government from sending terror suspects back to countries where they may be tortured. As evidence grows of possible British Government involvement in the “extraordinary rendition” of suspects, and amid allegations of complicity in torture, it is clear that these protections are desperately needed.

Furthermore, it is important to understand that the common law by itself proved insufficient to protect British liberties in the aftermath of 2001, including as venerable and sacred a liberty as habeas corpus. As the historian Ben Wilson has written of the Belmarsh judgment: “Incompatibility with the Human Rights Act made this possible, not incompatibility with the British tradition of liberty.” This episode showed that it is now the HRA, and not simply the common law, which has become the fundamental guardian of freedom against oppressive and arbitrary government.

The opposition of many Conservatives to the HRA is not only, however, the result of a misreading of its rights and function. The empirical basis for a great deal of public debate on the Act is also badly flawed and incomplete. Indeed a great deal of the popular hostility towards the HRA is based on sheer ignorance, made worse by misunderstanding. Myths abound about the HRA. These start out as newspaper reports. Soon they enter popular discourse. It is not long before they are used in the speeches of politicians. And yet almost invariably they are fabrications, or sometimes outright lies.

One example is the very widespread belief that the Human Rights Act has been successfully used to allow prisoners access to hardcore pornography in prison. In 2001 the Daily Mail correctly reported that the serial killer Dennis Nilsen was “using the controversial new human rights law to demand porn magazines in prison”. The key point, however, is that he was not using it successfully. When he went before the High Court to argue that denial of access to these materials was “inhuman or degrading treatment” the case was thrown out at the first instance.

A later Prison Service Order on prisoner property, unconnected with the HRA, gave prison governors some discretion as to what inmates should read. Yet the Telegraph reported, falsely, that “prisoners win their claim that hardcore porn is a human right”. Since then the Nilsen case has been reported again and again as fact by newspapers on left and right, and it has been highlighted by politicians trying to show that the HRA promotes a “compensation culture”. Later I will  show in detail how these myths emerge, and how they shape public opinion and create a false public discourse about the HRA and the European Convention.

I also draw attention to a coincidence. These myths, distortions and fabrications appear most in newspapers and broadcasting media which believe they have a powerful vested interest in the failure of the HRA.  Specifically, they believe that they could be adversely affected by the right to a family and private life contained in Article 8 of the Act.

A large element of the selling power of some British newspapers depends on their ability to break stories about the private lives of celebrities and other public figures. Furthermore, many editors and proprietors passionately believe that there is a strong public interest that such stories should be published. Celebrities and others have successfully used this right to prevent newspapers from publishing some stories about their private and family lives, and it seems likely that this has fuelled hostility towards the HRA by some parts of the press.

In general the same newspaper groups and media organisations which have campaigned most powerfully against the Human Rights Act are also those most powerfully affected by the privacy provisions of the HRA. Perhaps for that reason those pledging to abolish the HRA are guaranteed a generous media reception. Indeed it is unlikely that reform of the HRA would be on any political agenda, were it not for the potent advocacy of the most powerful media groups in the country.

In fact, however, it is far from clear that the HRA is contrary to the interests of the media. While there may be understandable and legitimate concerns about the impact of the right to privacy on press freedom, those in the press who have pilloried the HRA seem to forget that it is only because of the HRA that their freedom of speech is properly protected at all. The simple fact is that before the introduction of the HRA there was no enforceable right to free speech in this country – a position we would return to if the HRA were repealed.

Take the case of Sally Murrer, for example. She was the journalist on the Milton Keynes Citizen who had a conversation with a police officer which was secretly recorded by the Thames Valley Police, as a result of which she was prosecuted. She successfully argued that she had a right to freedom of expression under Article 10 of the HRA to do her journalistic job and to protect her sources. The prosecution case against her was thrown out as a result.

Moreover, if criminal proceedings had been brought against the Telegraph for its extraordinary revelations about MPs’ expenses earlier this year, it would be to the HRA that the newspaper would best have turned for a legal defence. And it should not be forgotten that even the much maligned right to privacy is championed by the same press that otherwise rail against it – when it is the State, and not the paparazzo, that wields the camera.

Abolition of the HRA would sweep away these protections for the press. And it is debatable whether abolition would in fact choke off theemerging law of privacy. The common law on breach of confidence might itself be a sufficient legal basis for the development of a de facto privacy law even without the HRA.

No: if newspaper editors and proprietors are unhappy with the way in which the common law is developing in conjunction with the HRA, the remedy is clear: they should lobby Parliament in the usual way for the introduction of new legislation to balance personal privacy with the media’s right to free speech. It is short-sighted in the extreme to call for the repeal of constitutional protections of fundamental rights, including those that offer direct protection to journalists, simply because of individual fact-specific judgments that displease – especially when the reporting of those judgments is often so distorted.

What, then, of the Conservative party? The strength of the party as a political movement has often derived from a tension between different principles which is intrinsic to conservatism itself. Nowhere is this clearer than in its attitude to freedom. On the one hand the mainstream party has consistently adhered to the ancient and liberal tradition of British scepticism about the role and extent of the state. This can be traced back through dissenter and patrician alike, through philosopher, campaigner and common law judge, through Cobbett and Dicey, through Burke and Blackstone back to Harrington and Bolingbroke, and well beyond. It emphasizes exactly the kind of individual liberties enshrined in the HRA.

On the other hand there is also a tradition of Conservative respect for authority, which can sometimes elevate the state above the rights and liberties of individuals. This strand of thinking lay at the heart of nineteenth century nationalism and is in general more commonly associated with continental movements of right and left, and with the Fabian tradition in this country, than with conservatism. But this more authoritarian strand of Conservatism still has its adherents, and it has received fresh impetus since 9/11. The logic can seem compelling: the first duty of the state is to protect its citizens; global terrorism poses a potentially existential threat to British citizens; so any measures by the state are legitimate to combat this threat. The argument receives further potency from the language of warfare, with its implicit suggestion that normal constitutional arrangements are to be set aside.

There is no need to rehearse the arguments on this issue. I would just make three obvious remarks. The first is that very serious terrorist threats are not new. Lest we forget, the Gunpowder Plot of 1605 was designed to kill both the monarch and his successor and the entire political and ecclesiastical leadership of this country. The second is that this country is not in a state of emergency. In an emergency, the supreme necessity of survival creates an imperative for action. Rightly or wrongly, various leaders including Pitt and Lincoln have even thought it necessary to suspend habeas corpus in order to protect the life of the nation and the government itself in the most difficult possible circumstances. The third is that the curtailment of individual liberties should be not the first but the last resort for government. Of course, as Mark Twain said, when all you have is a hammer everything looks like a nail. But the evidence is that this government in particular has been far too ready to reach for legislation to fight terror, in this area as in every other, rather than do the job well.

But the real point is this: that in its modern form this authoritarian strand is hardly a form of conservatism at all. Rather, it is rationalist, in seeking to suborn human society to a single moralizing project. Ultimately, this line of thought would put at risk both the freedom of our institutions and the rule of law itself.

Under the leadership of David Cameron, however, the Conservative Party has re-embraced the first and more dominant philosophical tradition. It has fought important battles for personal freedom: opposing 42 day detention of suspects without charge, opposing ID cards, and opposing unjust extradition and the poorly designed and safeguarded European Arrest Warrant. And it has taken these positions in a thoughtful and well-calibrated way, without naivety as to the gravity of the issues involved.

As a General Election approaches, it is important for the Conservative Party to drive home the message that it stands for freedom, decency and British liberty. It should drop its opposition to the Human Rights Act. As I show the existence of the HRA’s rights and freedoms derives from British common law. Their codification was specifically inspired by Winston Churchill and the Act is thoroughly conservative in its content and operation.

It is time, then, for the Conservative Party to make the Conservative case for the Human Rights Act. It is our own Bill of Rights, and Churchill’s legacy.