I’m flagging up here a couple of posts by others, a couple of posts which I’m linking together as highlighting benefits of the Human Rights Act. Both are from bloggers I’d highly recommend following anyway – @DrMarkElliott‘s Public Law for Everyone and @SteveBroach‘s Rights in Reality. Both are about recent decisions of the Supreme Court. But since they’re both legal blogs, I hope the authors won’t mind if I go back a couple of steps for a non-legal audience.
Irrationality or proportionality?
There has been a long-running debate about what happens if the State (which includes central and local government and lots of officials and bodies which make decisions on behalf of the State) does something unreasonable. Decisions have been able to be challenged by a process called judicial review, but a very old case Associated Provincial Picture Houses Ltd v Wednesbury Corporation  EWCA Civ 1 (10 November 1947) gave its name to a long established principle, that you can’t win a judicial review just because the State is unreasonable. You have to show that the State’s decision is so unreasonable that it is basically irrational:
‘Wednesbury unreasonableness’… applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it… (Council of Civil Service Unions v Minister for the Civil Service  UKHL 6 (22 November 1983)).
But the human rights we have under our Human Rights Act are also about the relationship between us and the State. A number of these rights – rights which are described as “qualified” – are rights that we have that can only be taken away from us where it is “necessary” to do so.
Now, these two approaches are not the same. It is not the same to say that the State can interfere unless it is irrational to do so, as it is to say that the State cannot interfere with our rights unless it is necessary to do so. Hopefully, it will be apparent that the Human Rights approach is more generous to us and gives less flexibility to the State to do as it wants. The Human Rights approach requires considering whether interfering with our rights is proportionate, weighing up both the benefits and the harm on both sides.
That is the subject of the first post highlighted here: Proportionality and Contextualism in Common Law review: The Supreme Court’s decision in Pham. Dr Mark Elliott (@DrMarkElliott) argues that a recent decision of the highest court in this country has gone further than ever before in saying that the Human Rights proportionality approach is now firmly established in UK law.
So, one benefit of having a Human Rights Act has been to move the goalposts, making it easier to challenge decisions to do with our rights on the basis that they are unnecessary and disproportionate even if they fall short of being irrational.
What about all those United Nations treaties we sign up to?
If one thing about human rights is that they make humans more important than the State in the relationship between the two, another thing about them quite possibly ought to be that they are common to everyone across the globe.
It is the United Nations in particular that has led on negotiating international human rights agreements. It is worth noting that our Human Rights Act gives effect to a human rights agreement that is local to Europe, and not a UN treaty, rather than a truly international cross-continental treaty.
But that rather begs the question, what status do these international UN treaties have in UK law? And the answer, while complex, has roughly been that although we have signed up to them as a country, individuals can’t enforce them in the courts.
But that is another area where there has been movement, and another recent decision of the Supreme Court is examined in the second blog I want to highlight: Enforcing human rights – what the Benefit Cap judgment means for future cases. Barrister Steve Broach (@SteveBroach) explains that an important issue when the Supreme Court had to consider some of the government’s changes to the benefits system was whether the changes complied with the UN Convention on the Rights of the Child, under which childrens’ best interests are a primary consideration.
Once again, the Supreme Court, influenced by the Human Rights Act, has been able to move in a direction that is helpful to us in our relationship with the State. Basically, the argument is that these treaties we have signed up to can properly be used to work out what our human rights mean, even though they are not mentioned in the Human Rights Act itself.
It does seem to me that it ought to be wholly uncontroversial that when we sign up to treaties that are intended to give agreed rights to humans, the effect should be to give the agreed rights to humans. Equally, that if human rights are given to us unless it is necessary to interfere, there should be a presumption against being allowed to interfere.
The Supreme Court is being eminently sensible. If you are a human being, don’t let the State pull the wool over your eyes.
See also, from one of the Supreme Court Justices, From Rationality to Proportionality in the Modern Law.
Allan Norman (@CelticKnotTweet) is an independent social worker at Celtic Knot. Between 2006-13 Celtic Knot was also his law firm. Allan now works at the British Association of Social Workers, leading on Policy, Ethics and Human Rights, including International issues. This blog is maintained in a personal capacity and does not necessarily represent the views of the British Association of Social Workers.