Seasoned human rights experts and commentators will be well aware of the political attacks that Conservative governments have directed, for the last ten years at least, at the Human Rights Act (HRA) and the operation in the UK of the European Convention on Human Rights (ECHR), which the HRA incorporates into our law. The Conservatives threatened to “scrap the Human Rights Act and introduce a British Bill of Rights” in David Cameron’s 2015 election manifesto. They reluctantly committed, with Theresa May’s 2017 manifesto, to remaining signatories to the ECHR, but only while the process of Brexit was underway and just for the duration of that parliament.
They have apparently now settled on a more nuanced narrative—with Boris Johnson’s 2019 manifesto promising to “update the Human Rights Act,” and judicial review more broadly, to “ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”; voters were to infer from this, of course, that the Human Rights Act (and administrative law in its current form—the subject of another report just published) promotes the rights of “unworthy” individuals over such imperatives.
So it was not a surprise when the government announced its independent review of the HRA in December, to examine how the Human Rights Act works in practice and, ominously, whether changes are required. The panel closed for submissions earlier this month and is now considering the material.
The ambiguity intrinsic in this idea of “updating” the HRA, coupled with the lack of any empirical evidence suggesting a need or rationale for such an update in the first place, has led the same human rights commentators to suggest that, rather than aggressively attacking the HRA and ECHR, the government is now seeking to undermine the key protections in them incrementally; “death by a thousand cuts” rather than a “‘big bang’ repeal of the HRA/ECHR exit,” to quote UCL’s Colm O’Cinneide.
Recent legislative developments offer support for this conclusion, most notably the introduction of the Overseas Operations Bill, which seeks to provide time limits beyond which members of the armed forces will be “shielded” from the reach of human rights laws—even where gross violations might have been committed—and which goes so far as to provide for a duty to consider derogating from the ECHR in respect of future overseas military operations. The Bill is “indefensible, ineffective and will prevent justice from being done,” wrote Harriet Harman in this magazine.
So it is no shock that human rights experts, academics but also lawyers—particularly those the Prime Minister and Home Secretary might categorise as “lefty human rights lawyers” and “do-gooders”—as well as senior judges and politicians have heeded the call, by the government’s own Human Rights Act Review and parliament’s Joint Committee on Human Rights (which has launched its own parallel inquiry), to contribute to the debate.
The evidence submitted so far speaks volumes, about how vital a role the HRA and ECHR have played in safeguarding our rights, first of all, but also about the futility of another review of the HRA that, like others before it, seems to presume there is something wrong with our human rights system. Does it not go far enough in ensuring deference to the executive? Does it unnecessarily bind our domestic courts to follow ECHR jurisprudence? Does it unduly empower those courts to decide policy matters? Accusations like these are implicit in the Independent Review’s terms of reference, suggesting a chronic anxiety about, if not a deep-seated antipathy towards, European human rights.
“If it ain’t broke, don’t fix it”
My fellow academics Kanstantsin Dzehtsiarou, Silvia Falcetta, Paul Johnson and I brought together 26 leading human rights experts to provide a response to the Independent Review, grounding our analysis of the HRA and the ECHR in the evidence. We made the point of asking them to demonstrate the HRA’s intrinsic value as well as tackling the more technical questions relating to how judges use it in reality.
We demonstrated that, in taking into account ECHR jurisprudence in line with the provisions of the HRA, and in maintaining a constructive dialogue with the European Court of Human Rights—including in the context of legal doctrines, such as the “margin of appreciation” and principle of “subsidiarity,” which prioritise giving domestic courts room for manoeuvre, especially in areas where a European “consensus” has not yet formed—neither the Strasbourg Court nor the UK judiciary encroach upon the powers of the executive or parliament. Rather, the domestic courts and the European Court fulfil their central mission of holding the executive to account, giving effect to our fundamental rights in the process.
Perhaps no one could have made the point more powerfully than the former first female president of the Supreme Court, Brenda Hale, who—in specific reference to one of the central accusations that has served to demonise the HRA—told the Joint Committee on Human Rights:
I do not think that the Human Rights Act causes a problem for parliament, because it is very carefully crafted […] to ensure that parliament remains supreme and can take whatever action it deems fit, including doing nothing at all, even if the courts have said that a particular piece of legislation is incompatible with the convention rights. I do not think there is a problem or any need to fix it. I cannot myself think of a fix that would make things better as opposed to potentially making things worse.
Not only this, but the HRA has also enriched our law in many indirect ways, including in making “our judges [...] more aware of the ordinary, everyday concerns and problems of ordinary people” and “inject[ing] fresh thinking into our judiciary generally, into our law,” as another former president of the Supreme Court, David Neuberger, explained during his recent appearance before the same committee.
What’s more, the HRA has substantially reduced the number of cases that go to the European Court of Human Rights in the first place, allowing UK courts to deal with them at home. As former attorney general Dominic Grieve put it to the Joint Committee: “if we had not been adherent to the ECHR, the job of the attorney [general] in dealing with the volume of cases that might have been trotting off to Strasbourg and making sure that we were represented, and everything that went with it, would have been very considerable.”
Drawing on such evidence, the committee was naturally led to adopt the position, in response to the Independent Review’s consultation questions, that “there is no compelling case for reform of the HRA,” noting that the Act “respects parliamentary sovereignty,” does not draw the UK courts into making decisions better left to parliament, and provides “an important mechanism which allows individuals to enforce their rights which would be impossible for most people, were it to require the great expense and years of delay of going to the European Court of Human Rights (ECtHR) in Strasbourg.”
“If it ain’t broke, don’t fix it,” noted the Joint Committee on social media as it published its submission, referencing the Review’s paradoxical search for a fix to a problem that simply does not exist, but which the government has artificially created for political expediency. The Eurosceptic populist apparatus has outlasted Brexit.
Political context and positive impact
The Independent Review marks a deviation from direct political aggression towards the ECHR, “proceed[ing] on the basis that the UK will remain a signatory to the Convention,” as stated in its call for evidence. But at the same time, it throws into question the UK’s continued commitment to giving full effect to the rights and freedoms enshrined in the ECHR domestically, through the HRA.
Its terms of reference were framed against a politically polarised backdrop, with allegations the Human Rights Act allows the judiciary to undermine the executive and questions over the relationship between domestic courts and the European Court of Human Rights. Yet it ignored—deliberately, one assumes—the broader socio-political context and the profound impact that such polarisation around human rights may have on their application in practice. As Durham University’s Helen Fenwick and Roger Masterman note in our submission, even “the Supreme Court… has been increasingly confronted with a socially conservative political climate,” particularly from “right-wing ideologues in the Conservative party, who have directly attacked the HRA/ECHR on a number of occasions.”
It is also counter-intuitive for a review of the Human Rights Act to fail to ask the cardinal question of whether the Act has succeeded in actually protecting human rights. The fact that the Act has indeed been a great success—the HRA and ECHR have revolutionised our human rights law—provides the strongest possible indication that the mechanism works.
As Grieve has commented: “I think our eyes would pop out of our heads just reflecting on some of the things [that] were being done in a rather cavalier fashion right up to the 1990s.” Jonathan Cooper makes the point that “the common law provided hotchpotch protection… [b]y the mid-90s, uniquely at the time across the Council of Europe, the UK had been found to violate all of the substantive ECHR rights except [freedom from] slavery, and a violation of that right was to follow”; the introduction of the HRA “was a necessity,” he concluded.
The Review of the HRA cannot be seen in isolation. Upon publication of the report of the Independent Review of Administrative Law, the Lord Chancellor, Robert Buckland, once again rehearsed in parliament the narrative that we must “rebalance our system,” but delivered it with an awkward paternalistic emphasis on the need—through reform of judicial review—to “protect the judiciary from unwanted political entanglements.” Protect the judiciary from themselves, in other words, by limiting their capacity to hold the government to account. It is what the HRA Review’s terms of reference imply as well.
While all this is happening in Westminster, north of the border, the Scottish government has warned that it will “strongly oppose any attempt to weaken the UK Human Rights Act” and is also preparing to introduce “world-leading” human rights legislation, with a Human Rights Bill that will incorporate “four UN Human Rights treaties into Scots Law, including legislation that enhances human rights for women, disabled people and minority ethnic communities.”
Renewing commitment to human rights
I have stressed before in this magazine the urgency of renewed commitment to the HRA and ECHR, instruments that have breathed new life into the exercise of human rights in the UK. Losing them, “updating” them (in a way that might undermine their effect), unsettling a model that works, would suck oxygen out of a legal system that has become part of who we are, that ensures we can be who we want to be and that the government must respect and protect us.
From the Hillsborough 96 to Grenfell’s 72 innocent victims and their bereaved families, to helping prevent violence at the hands of the state and investigating deaths in police custody, we rely upon the HRA and ECHR in our fight for justice. When we sought to protect marginalised individuals—the rights of disabled people, or those of asylum seekers—the HRA and ECHR were there. In our pursuit of sexual equality, the right to fair trial, freedom of expression and religion, it was these vital protections that we again drew upon. We used the same instruments to prevent privacy invasions by the press, and arbitrary interference with our fundamental right to a private and family life. We count upon the HRA and ECHR every day, as we have painfully realised once again following the tragic death of Sarah Everard, with urgent questions surrounding the right to protest in the time of Covid.
The way we enjoy human rights is organic. That is what the Independent Human Rights Act Review has a unique opportunity to concentrate upon, notwithstanding the toxic political environment which serves as a backdrop to its work.
