Twenty-four years ago today, on 2nd October 2000, the Human Rights Act took full effect in the United Kingdom. This legislation, which was passed in 1998 under the incoming Labour government to give effect in our domestic law to the European Convention on Human Rights (ECHR), was both radical and conservative. And before long, it was also politically controversial.
In 2006, the then new Conservative leader David Cameron promised to repeal the Act and replace it with a “British Bill of Rights”. And the 2010 Conservative manifesto pledged that, if the party was elected, “we will replace the Human Rights Act with a UK Bill of Rights”.
In the coalition government of 2010-15, the Liberal Democrats blocked any attempted repeal, and so the Conservatives instead in 2011 launched a “Commission on a Bill of Rights” which deliberated, had some exciting resignations, as reported in 2012, and was soon forgotten.
In 2014 the Conservatives put forward fresh proposals, under Chris Grayling as justice secretary. And so in 2015 the Conservative manifesto again promised that the “next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights”. This time the Tories won an overall majority at the election, and so had a mandate for repeal.
Yet the Human Rights Act remained defiantly unscrapped, even though the ambitious junior minister Dominic Raab produced an internal government paper setting out how the repeal could take place, only to be rebuffed by a Downing Street preoccupied by Brexit.
The Conservative manifesto for Theresa May’s snap 2017 general election did not promise to scrap the Act for that same sensible reason:
“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”
In 2019 the Tory manifesto also drew back from proposing a full repeal, instead declaring:
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
That limited manifesto promise, however, did not prevent Raab—now as secretary of state for justice—bringing forward a complicated long bill to repeal the Act and replace it with a British Bill of Rights. But that elaborate and confusing legislation made little progress, and the bill was soon abandoned. It was not worth the effort. Tellingly, this year’s Conservative manifesto did not even bother mentioning the Human Rights Act.
And so 24 years later, the Human Rights Act is still in place, and the Conservatives are not.
Its survival is quite an achievement, given the Conservatives had a mandate for repeal in 2015 and in 2019 a repeal bill was actually put before parliament.
How has it endured?
First, and as is now well known, the Good Friday Agreement provides that the UK has to maintain a means of enforcing the European Convention on Human Rights in the courts of Northern Ireland. And this means that any repeal requires a replacement Act to do just the same, at least in the jurisdiction of Northern Ireland.
This is an important requirement which matters a great deal to the government of Ireland and to the nationalist community in the north of Ireland. It is also a requirement which is rarely addressed even now by Conservative politicians who call for the UK to quit the ECHR. As with Brexit, they pretend that Northern Ireland does not present any special challenges.
Another reason for the Act’s survival comes back to its content. Although it was radical in giving direct effect in our domestic law of an international human rights instrument, it was very small-c conservative in how that was done. No Act of Parliament could be disapplied for a breach of the ECHR and judges were only required to consider Strasbourg case law, and not necessarily to follow it. In practice very few cases ever turn entirely on a Human Rights Act point, and usually some domestic law can be found on which to base a decision.
This is not to say the Act has been impotent. To take one example, it enabled the Hillsborough campaigners to reopen the coroner’s inquest into the deaths of the Liverpool supporters at the stadium in 1989. The first inquest was not compliant with the ECHR requirement that deaths caused by the state should be properly investigated.
The Human Rights Act also enabled UK judges to somehow by 2014 have fashioned out of nothing an entirely new tort of misuse of private information. The Act nowhere expressly provides for the creation of such a privacy right, but in a sequence of cases after 2000, judges gradually “developed” (that is, invented) such a legal action.
And although this privacy law irks the press, no leading politician has promised that this particular new human rights law should be abolished. It is almost as if politicians have tacitly allowed the courts to effectively legislate for a new privacy law because the press would never allow politicians to do it themselves.
Indeed, the Human Rights Act has been a convenient piece of legislation for many reasons. It allows them to have something to blame when addressing nod-along audiences. One might even suspect that right-wing politicians did not repeal the Act when they could—and had either the mandate or legislation to do so—as they would miss it as an ever-useful bogeyman.
Now the Conservatives are back in opposition, and like Cameron in 2006 demands for repeal will be made by rising frontbenchers—and indeed current leadership candidates are campaigning on leaving the ECHR. And perhaps one day if the Conservatives ever return to office, there will again be attempts to repeal the legislation, maybe because of a desperate need for another political anti-European “high” to replace Brexit. But if the Act can survive the sustained 2006-2024 assault, then it may well survive the next attack.
But the truth will remain that as long as Northern Ireland is part of the United Kingdom, no UK government will materially breach the Good Friday Agreement—and there is no obvious scope for that instrument to be fundamentally renegotiated so as to lessen the human rights protections for the nationalist community.
The Human Rights Act is too helpful to politicians for what it does do—and for what it does not do. And so it appears not only that the Act will have a happy birthday, but also many happy returns.
