Is there a heightened threat to the Human Rights Act?

This was not originally prepared as a blog, but as a Briefing Document. It has been amended for publication.

Human Rights Act – Briefing Document

1. Introduction

I have prepared this document to provide what I hope is useful information to inform the discussion that has been mooted, and placed on the agenda, concerning the future of the Human Rights Act and the potential threat to the Act. There is some element of opinion and/or reflection, but what follows is primarily by way of information. I trust that it is helpful.

2. Is There Really a Threat to the Human Rights Act?

I believe the immediate trigger for this item was a news story that the new Minister of Justice and Lord Chancellor, Liz Truss, had recently made a statement that it was the government’s intention to repeal the Human Rights Act and replace it with a British Bill of Rights.

There are three reasons why we ought to treat that news story with a little caution, and be aware that there may be less substance to it than at first appears.

Firstly, the Human Rights Act has been under threat of repeal for more than 10 years, which is more than half the time it has been in force. Attacking the Human Rights Act is nothing new, and the level of threat varies depending on what else is on the agenda. To those following the saga for a long time, it does not seem to be any more seriously under threat now than before Liz Truss’s statement.

Secondly, it is worth noting in more detail the context of Liz Truss’s statement. In the context of her bid to become Prime Minister, Theresa May announced that she would not try to take the UK out of the European Convention. She did this, considering it to be politically expedient, because she felt there was not the same strength of feeling about human rights compared to Brexit. That was also reported as a news story, shortly before the Liz Truss story. Therefore, there were two stories pointing in different directions, closely linked in time. The Liz Truss story was not in the context of a major policy announcement about human rights. It was in the context of a question asked during wide-ranging interview with her as the new Lord Chancellor. Her answer simply correctly reflected the Conservative Party’s manifesto commitment. So again, many of those who have been following the saga for a while think that the story may have been blown up to be more than it was, when it was actually an on-the-hoof answer to a question in an interview about other matters, and simply reflected existing manifesto commitments.

Thirdly, the reason the Human Rights Act has proved so resilient, and remained in place for so long, is that there are a number of inherent paradoxes and complications in relation to any proposed repeal. None of those paradoxes and complications have gone away, and there is no indication that the new Lord Chancellor has addressed her mind to them. The main ones are set out under the next heading below.

3. Paradoxes and Complications

a) Sovereignty

A consistent theme in attacks on the Human Rights Act is the idea that it undermines sovereignty, by giving away power to European institutions.

However, paradoxically, the reverse is true, and the repeal of the Human Rights Act would decrease sovereignty and give away power to European institutions. This is because the Human Rights Act itself was intended to “bring rights home” by making the meaning of human rights directly justiciable in domestic courts. Combined with this, at around the same time, a Protocol to the European Convention on Human Rights made it compulsory for all members of the Council of Europe to permit individuals residing in signatory States to have a right of direct petition to the European Court.

Therefore, the immediate effect of the repeal of the Human Rights Act would be to restore the position prior to the Human Rights Act, namely that any individual with a dispute about whether we have complied with our obligations under the European Convention could take their case directly to the European Court of Human Rights, which requires that people have first exhausted their domestic remedies. If you repeal domestic remedies, more people will be forced to go to the European Court.

The only way to actually stop people appealing to the European Court is to withdraw from the European Convention, rather than to repeal the Human Rights Act and replace it with a British Bill of Rights. There has been talk of actually withdrawing from the European Convention, but because of the serious implications of reneging upon international Treaty obligations, such talk has been rather more half-hearted than that relating to repeal of the Human Rights Act.

b) The International Dimension

Having alluded to the international dimension, more needs to be said about it.

Firstly, it is at least arguably intrinsic to human rights that they are international in nature – that they arise because of our humanity, rather than our nationality, and that to speak of our human rights being different to those of other humans elsewhere flies in the face of the concept itself.

Secondly, the human rights we are talking about are invariably set out in international treaties. These include a whole range of conventions, charters, protocols, declarations and treaties drawn up by (among others, and relevant to the UK) the United Nations, Council of Europe, and European Union. As with Brexit, it is not possible to renege on international treaty obligations, except by unpicking a commitment to the international treaty.

Thirdly, reneging on a commitment to an international treaty dedicated to upholding human rights is widely understood to be likely to diminish the U.K.’s standing in the international community, putting it on a par with rogue nations that do not honour and respect human rights.

Fourthly, and perhaps most cynically, there is a level at which human rights standards have been used by nations to judge each other, and as justification for war or other forms of aggression against each other. Reneging on Convention commitments also weakens the U.K.’s ability to use this plank of international diplomacy.

c) The Devolution Dimension

So far as I can tell, hostility to the European Convention on Human Rights and Human Rights Act is primarily an English rather than UK phenomenon. Certainly, the devolved institutions of the other three nations are not seeking repeal of the Human Rights Act. Moreover, the European Convention is actually entrenched within the devolution settlement of all three.

In consequence, unpicking our human rights settlement would also require unpicking the devolution settlements, or creating a framework in which people had different human rights depending upon which part of the United Kingdom they lived in (and at the moment, human rights are not devolved in this way).

The devolution dimension is most acute in Northern Ireland. There, it is not simply domestic legislation granting devolution that would have to be revisited; it is an international treaty – The Good Friday Agreement – that would have to be revisited, so that creates a further international complication. Here is the correspondence from the Irish government on this subject.

d) The Political Dimension

I suggested earlier that attacks on the Human Rights Act emerge from time to time when it seems politically expedient. In this context, the Act has proved to be a useful totem, a straw man to attack, and has widely (and correctly) been identified with the former Labour administration.

I venture to suggest that there may be some understanding that it is convenient to be able to blame “Labour’s Human Rights Act” from time to time, and that there may be a certain reluctance to replace this with a new totem for attack, the “Tory Bill of Rights” – in other words, it is expedient to keep in place something from the previous Labour administration to attack when convenient.

e) The Question of Harm

I suggested earlier that the Prime Minister had indicated that she did not think there was the same strength of feeling in relation to the Human Rights Act as in relation to the European Union.

I suggest that the key reason for this is that it has been possible to present the debate about Brexit as a debate about the harm of the European Union. Opponents of the European Union argue that it causes economic harm and that it creates bureaucratic burdens for us all.

By contrast, the primary criticisms of human rights are that they are felt to be remote and irrelevant to the ordinary person, and to benefit only undesirable people. But these arguments are of a very different kind to those about the European Union, and rather harder to sell: it is one thing to persuade people to act in what they see if their own self interest. It is quite another to persuade them to take steps that they think are currently irrelevant to them, merely to harm the interests of others.

In fact, as will emerge under the next heading, the interests that are harmed by our Human Rights Act might be said to be not those of any individual so much as those of the State itself, because of the critical role that human rights play in holding the State to account, and in preventing arbitrary state interference. That would explain political antipathy, but it would also explain that Prime Ministers perception that there is not the same will amongst the electorate against human rights as against the European Union.

4. Article 8

Article 8 is worth singling out for particular mention both because of its own significance, and also because of the way in which it encapsulates other issues.

Article 8 is particularly controversial for:

•    The UK government
•    The media
•    Social work

I have set out that human rights play a particular role in holding States to account, and in preventing arbitrary interference by States. In particular, Article 8 does this by limiting the right of the State to interfere in private and family life. It has been argued that Article 8 in particular is the human right that is not familiar to the English Common Law, where as most other human rights are better appreciated. However, it emerges from the history of key human rights documents in the aftermath of the Second World War. This key passage in T & Anor, R (on the application of) v Secretary of State for the Home Department & Anor [2014] UKSC 35 (18 June 2014) explains the point:

The United Kingdom has never had a secret police or internal intelligence agency comparable to those that have existed in some other European countries, the East German Stasi being a well-known example… But such concern on this side of the Channel might be said to have arisen later, and to be less acutely felt, than in many other European countries, where for reasons of history there has been a more vigilant attitude towards state surveillance… The protection offered by the common law in this area has, by comparison, been of a limited nature…

The higher level of concern elsewhere in Europe is reflected in the repeated condemnation by the European court of the law of this country in this area, often on the basis that the law contains no adequate safeguards, in such cases as Malone v United Kingdom (1985) 7 EHRR 14, Halford v United Kingdom (1997) 24 EHRR 523, Khan v United Kingdom (2001) 31 EHRR 45, Peck v United Kingdom (2003) 36 EHRR 719, Copland v United Kingdom (2007) 45 EHRR 858, S v United Kingdom (2008) 48 EHRR 1169 and Kennedy v United Kingdom (2011) 52 EHRR 4.

So, our European neighbours better understand the need to keep the State in check, because of their experience of totalitarianism; conversely, the UK does not understand it so much, and feels aggrieved that a European Court keeps finding against us on Article 8 in particular.

Thus, it is Article 8 in particular that has been infamously the subject of a conference speech attack by the current Prime Minister in her former role, speaking about the (completely mythical) right to family life with a cat. It is also Article 8 that has been addressed by specific provisions within the Immigration Rules, telling immigration practitioners how they ought to understand and apply Article 8 to immigration situations. There have been repeated suggestions that any British Bill of Rights would specifically dilute the existing Article 8.

Meanwhile, although there is a shared antipathy to Article 8, the media’s concerns are driven by something different, namely that Article 8 limits their ability to report salacious gossip; and hence, albeit for very different reasons, the media and the government find themselves bedfellows on Article 8…

But I specifically mentioned social work above. Note:

Firstly, that very many statutory social work interventions, and certainly statutory social work interventions exercising powers of compulsion, necessarily engage Article 8, so that social workers are constantly having to grapple with this human right in particular, which is constantly keeping in check the right of a social worker to intervene in private and family life.

Secondly, there will be many social workers who share a view that Article 8 in particular impedes the right of the State to intervene in family life, and I suspect that the profession, much of which is a statutory profession, will be far from united in welcoming this limit on their right to intervene in family life. It is therefore the case that Article 8 will be the touchstone for controversy about whether social workers are united in wanting to uphold our international status as a human rights profession, or divided because some favour the removal of constraints upon the right of the statutory profession to intervene in private and family life.

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