Is Brenda Hale fearful for UK human rights?

The Human Rights Act is one of the most important pieces of legislation parliament has passed in recent times. Twenty years ago it came into force, enshrining the European Convention on Human Rights (celebrating its own anniversary this year) in domestic statute, with far-reaching consequences for the operation of the law and for society at large.

The move is still heralded as a triumph by campaigners. Yet today human rights law is seen as one of the next targets in the culture war. Dominic Cummings has said that after Brexit “we’ll be coming for the ECHR referendum and we’ll win that by more than 52-48.” The 2019 Conservative manifesto promised to “update” the act. This cause has a long pedigree: Theresa May, while home secretary, famously protested (without evidence) that it prevented her deporting an illegal immigrant because he had a pet cat. The row over Shamima Begum has revived the general discussion.

To discuss all of this, I phoned Brenda Hale, until recently president of the UK Supreme Court. She sat on some of the most publicised cases of our time and led its unanimous prorogation judgment, televised to millions. Now 75, she has retired after 25 years as a full-time judge, having heard countless human rights appeals. “I hope,” she said, the HRA is “not in jeopardy.” What precisely is at stake?

“Well, as you know,” she began, “the convention was agreed in 1950 and it was very much promoted by the UK, and it was seen as reinforcing for the countries of western Europe… the rights, freedoms and liberties which it was thought that the citizens of the UK already enjoyed. It was partly to do that, and partly as [a] reaction to the Second World War and what had gone on then… and also to the descent of the Iron Curtain within Europe.”

She continued: “The UN had been comparatively slow in turning the Universal Declaration of Human Rights into binding international instruments… so Europe went alone in promoting its own system.”

That system is not part of the European Union but the Council of Europe, which has grown to 47 members. It enshrines “the right to life in article 2, the right not to be tortured or ill-treated in article 3, the right not to be enslaved in article 4, those are the unqualified rights.” Then there are “qualified rights that follow from that,” such as the right to privacy and many others, “where there’s a balance between the rights and the justifications for interfering with them.” The European Court of Human Rights in Strasbourg is the final arbiter.

For decades, this is where all of our own cases were heard too. If a citizen felt their rights had been infringed, they had to take a claim to Strasbourg. But the HRA empowered UK judges to interpret the convention: the Blair government sold the legislation as “bringing rights home.” What precisely were the legal consequences?

“It has had three effects,” Hale told me. “The first thing that it does is to turn the rights as they are stated in the convention into rights in UK law. Now we always thought that we had the right, for example, to freedom of speech, but that right is now defined in the way in which the convention defines it.”

“The second thing it did was to require the courts and indeed everybody else to interpret legislation, acts of parliament and rules and regulations and the like, as far as it was possible to do so, compatibly with the convention rights.”

“And the third thing it did was to allow the high court and the courts above it, if they couldn’t interpret the legislation compatibly, to make a declaration that the legislation was incompatible.” That includes central government and other public authorities, which have to act compatibly with convention rights.

The UK had been a signatory to the convention from the beginning. But these new elements were seen by some as playing into the idea that judges could strike down acts of parliament simply because they wanted to. What was lost on critics was that a declaration of incompatibility is not the same as striking legislation down. As Hale told me, the idea was actually to “preserve the sovereignty of parliament. It meant that if an act of parliament said something, well then that was the law, the courts could not ignore it. But it told parliament that in the view of the courts, the position was incompatible with the convention rights and so they better do something about it. And in fact, parliament always has done something about it”—amending its own law in response. In this respect the convention differs to EU law, which automatically overrides UK law (for now).

An additional problem was the perception of the convention as developing unchecked. On this view, the application of the convention had morphed so much over the decades that it now bore little resemblance to its creators’ intention. Hale, who has given academic lectures on this subject, told me “I think it was always expected that the convention would have to grow and develop and that society itself develops and new challenges and problems arise.” Are we still within the territory of natural growth permitted by the original instrument? “I’d have thought so.” Further to this, member states are granted a “a degree of latitude” in interpreting the convention in accordance with their own traditions.

But this has not assuaged critics, and the fear is that once the government can turn attention from coronavirus, human rights reform will rear its head. Jonathan Sumption has given the cause intellectual respectability in his BBC Reith lectures (Helena Kennedy debated him in Prospect, outlining what she saw as the concrete benefits of the HRA). Before the virus struck the government had announced a constitution, democracy and rights commission, some version of which may soon be unveiled.

What would be the consequences of reform? That depends on the extent of it. The Conservative Party under David Cameron lobbied for a British Bill of Rights. “It would be a replacement and there’s nothing wrong with that,” said Hale. But only “as long as it is a replacement and as long as it does the same job.”

The convention “has been very much a force for good,” said Hale. “It is a condition of membership of the Council of Europe that one subscribes to the European Convention,” she added, meaning abdication “would place the UK in a very difficult position.” (It would also create problems for the devolution settlement, which is entwined with ECHR compliance.)

Is the UK, free from tyranny for so long, inclined to take human rights for granted? “That might be the case... I agree that in general, we have not thought that we are at risk of [becoming] a totalitarian state, and so things like freedom of speech, religion, family life, freedom from arbitrary imprisonment, we probably have taken them for granted.

“Although,” Hale continued, “whether all sections of society have taken them for granted, in the same way that some of the more privileged sections of society have… well I would doubt, actually. And I’m thinking of recent events, recent concerns, about the different impact of certain activities of public authorities on different sections of society”—comments that will chime with the Black Lives Matter movement.

Ultimately, the UK is leaving the European Union and the multilateral order is a little weaker. But its human rights infrastructure need not suffer the same fate. The European Convention, and its enshrinement in UK law, has been a great success. The instrument has developed but within natural limits. Parliament has remained sovereign. A former judge, Hale would not go so far as this, but I can: it would be disastrous for the UK’s standing in the world, and for its citizens, if it chose to chip needlessly away at those protections now.