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.