Why is the Human Rights Act 1998 still so contested? And what can be done about it?

Ash Wednesday, 2021

The political hobgoblin is at it again.

As this blog has previously averred, this particular politician is a political hobgoblin, adept at at identifying political gaps and then exploiting those gaps so as to inflict misfortune and spread discontent and gain political support.

As such, this politician should be taken seriously – though not on his own terms.

All because an illiberal politician wants others to join some culture war that does not mean that liberals and progressives have to do so in kind.

But quietism is an error too: the old commands to not ‘feed the trolls’ or ‘give oxygen’ are not useful tactics or a sensible strategy to address relentless authoritarian nationalistic populism.

Instead, corrections should be made as publicly as possible, and illiberal ploys assessed for their significance to see what, if anything, can be done practically to combat any appeals of reaction and illiberalism.

Had liberals and progressives reacted differently to the rise of Ukip, for example, and made the positive and informed case for United Kingdom remaining part of the European Union, and for staying part of the single market and the customs union, then the shape of Brexit may well have been different, that is if Brexit would have happened at all.


So what should one make of this complaint about the ‘EU Human Rights Act’?

One reaction is to laugh and sneer at its legal illiteracy: for the ‘EU Human Rights Act’ is not a thing.

The politician(s) saying otherwise know this, but they do not care.

They are getting the ‘likes’ and RTs and claps and cheers anyway.

And liberal and progressive jeers are, for the illiberals, all part of their political fun: the sound of ‘libs’ being ‘owned’.

But if liberals and progressives simply ignore the hobgoblins then that may have the unhappy result of making certain unwelcome legal and policy consequences more likely.

And the Human Rights Act may end up thrown away like membership of the European Union, and liberals and progressives will stand and stare and wonder: how did this happen?


And here we come to the Human Rights Act 1998, which took legal effect twenty years ago, in 2000.

The statute is still there on the statute book – while politicians who have sought to repeal or dilute it, such as David Cameron, Theresa May and Chris Grayling, have come and gone.

This survival may make the act’s defenders and champions complacent.

But the main reason the act has survived – at least on my analysis – is that the Good Friday Agreement provides that the European Convention on Human Rights is directly enforceable in the courts of Northern Ireland.

And one of the things that the act does is to make the convention directly enforceable in domestic courts in a way that would not be legally possible but for the act.

If the Human Rights Act 1998 was repealed then something very similar to that act would need to be put in place straight away, at least in respect of Northern Ireland.

The current political controversy about the position of the north of Ireland after Brexit indicates, however, that nothing about the Good Friday Agreement should be taken for granted.

And liberals and progressives should not thereby rely on the Good Friday Agreement being the means by which the act will survive, instead of making the positive case for the legislation.

After all, the fact that membership of the European Union provided a practical solution to the question of the border in Ireland did not stop Brexit.


After twenty years of legal effect, the Human Rights Act 1998 is still contested.

It has not eventually become part of the political consensus, in the way that other previously contested legislation have done so.

Every general election the Conservative Party will bang on their populist drum about replacing the act with something else.

Part of this perhaps is because of the name of the legislation.

Had the statute instead been called the ‘Interpretation of Legislation and Powers of Public Authorities (Application of Articles of the European Convention on Human Rights) and Related Purposes Act 1998’ then maybe the act’s opponents would be less incensed.

And as the Police and Criminal Evidence Act 1984 – arguably the most important legislation ever passed for the practical protection of civil liberties – shows, the more boring the name for an act, the more it can get away with.

Here, ‘New Labour’ may be blamed, as for many other things.

For as with the Freedom of Information Act 2000, the government of Tony Blair put dramatically named legislation in place, and then did nothing to take the next step of embedding that legislation as part of the political mainstream.

Just passing the Human Rights Act and the Freedom of Information Act but then not promoting a sustainable human rights and freedom of information culture was a big job left undone.


Another reason why the Human Rights Act is still contested is that the news media do not value the legislation.

Indeed, the way the act enabled the courts to ‘develop’ (that is, to invent) an entirely new tort of the misuse of private information was seen as a hostile move by much of the news media.

And had the courts put comparable efforts into ‘developing’ the right to freedom of expression under Article 10 then the news media may have come to see the act in the same way American journalists see the first amendment.

But in practice, Article 10 often seems to be the weakest of the rights provided for under the act – invoked as part of a perfunctory ‘balancing exercise’ before being rejected in favour of privacy rights.

As the eminent jurists Chas and Dave would put it, Article 10 is the sad neglected Mr Woogie of domestic human rights law, and Article 8 is the popular Mr Boogie.

Poor old Mr Woogie.


And what the Human Rights Act gets right is also overlooked.

Take for example the new Hillsborough inquest.

That there was a further inquest able to to explore fully the circumstances of the tragedy was legally possible only because of the Human Rights Act.

The right to life under the act carried with it the duty to ensure that the circumstances of deaths brought about by the acts and omissions of public bodies (in this case the police) were properly considered.

And so even though the tragedy was before the act took effect, the new inquest had to take the wider Human Rights Act-compliant approach.

But you would not know this from news coverage – and indeed many people who follow public affairs would not know this at all.

There are many other examples, but none that have traction in the public domain.

And so we are left with the occasional outrages instead.


Finally, there is the inconvenient truth that the Human Rights Act is not what some of its supporters say it is.

The act is not an especially powerful statute.

It provides a basis for a court to take a right under the convention seriously, but it does little more than that.

Almost all the rights are ‘qualified’ and so can be side-stepped in practice as long as a public authority can show that the interference with the right is proportionate and in the public interest – and these are not high hurdles.

And, unlike what was the case with European Union law, primary legislation cannot be set aside when convention rights are breached.

The Human Rights Act provides a balance between access to the convention rights in legal proceedings and the doctrine of parliamentary supremacy.

The act does not do a lot, but it does enough – and it is far better than nothing.

But a practical and pragmatic case for something that is ideoologically contested is difficult.

Brexit showed this.


So how does one defeat the political hobgoblins?

By realising that there is a case to be made for a thing that is contested – and by making that case.

By patiently correcting errors of the hobgoblins and by being realistic about what one is defending.

This approach, of course, has no guarantee of success.

But ignoring the hobgoblins – or screaming at or along with them – is even less likely to be successful.

And sometimes contests can be won as well as lost.

The outcome of a contest may not be predetermined.

Ask Mr Woogie.


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20 thoughts on “Why is the Human Rights Act 1998 still so contested? And what can be done about it?”

  1. I think this is much too generous. Reactionaries hate the Human Rights Act for the same reason they hate judicial review: Because it stops them doing reactionary things. Let’s please not overthink things.

  2. The Secret Barrister cites the example of the wretched John Worboys, the black cab rapist, as an instance whereby the police were held to account for the failings of their investigation. The fact that no such power existed before the act seems a powerful argument in its favour to me.

  3. I welcome the way you recognise the power the Act gave the courts “to ‘develop’ (that is, to invent)” new law. I regret that you did not go on to address the democratic deficit that creates given Parliament cannot amend the ECHR which the Act embodies.

    What bothers some of us is that there is no practicable way for voters to constrain the way judges use that power. And I don’t accept that it is illiberal to think that even judges should ultimately be subject to the will of the people.

    Of course with democractic accountability it would be proper for (self-identifying) liberal, progressives to seek to ensure that their will prevails. But I’d respect them more if they accepted they may be happy with the current system because it gives them the judges/judgments they want, not becuase it is the best of all possible worlds for a democracy.

    1. The UK can agree amendments to the ECHR with its other signatories. This happens quite frequently in fact.

      Also, the UK Parliament is always free to amend the provisions of schedule 1 of the Human Rights Act, which is where the substantive rights actually are. In fact, not all provisions of the various protocols to the Convention are included in Schedule 1, and it always remains the choice of the UK Parliament to include something or not, and if so in what language.

      At the end of the day, the politicians in Westminster still get to mark their own homework. Isn’t parliamentary sovereignty great?

    2. The judges have always “developed” the common law, since time immemorial. That is the very nature of our legal system. The torts of negligence and nuisance, the remedies of promissory estoppel and unjust enrichment, and the crimes of outraging public decency and conspiracy to corrupt public moral, all sprung from the heads of judges.

      Parliament also cannot unilaterally amend the UN Charter, or the NATO Treaty, or WTO agreements, or any number of other international instruments to which the UK is a party.

      But what amendments would you like to make to the ECHR? And what additional constraints would you like to seen on judges?

      All the Human Rights Act does is explicitly allow judges to interpret other laws in a way that is consistent with the ECHR, and point out where that can’t.

  4. The UK was a founding member of the Council of Europe (with the HR treaty and the ECHR) one of the driving forces of the OSCE and the enlargement of the EU. Would Farage’s dream include leaving all “European” organisations (of course the OSCE has non-European members). I have two more candidates: NATO and the OSCE. The end result would be splendid isolation. Does Farage have a problem with human rights (from Magna Charta to UN) or only ones that his fans associate with the EU?

  5. Interesting that one of the three draftsmen of the original ECHR was Sir David Maxwell-Fyfe, a Conservative who had been Attorney General in Churchill’s caretaker Government at the end of the War and who subsequently became Lord Chancellor as Lord Kilmuir. I don’t think that his worst enemy would have described DM-F as a liberal progressive.

  6. He doesn’t want any of that nasty European law on this sceptred isle – even if it was drafted seven decades years ago by UK lawyers at the behest of UK politicians, for a body advocated by Churchill and created under a Treaty of London, and taken into UK domestic legislation two decades and more ago. Echoing very basic international standards such as those set out in the Universal Declaration of Human Rights. Much better to have a vague statement of principles that can be ignored.

    I mean, what reasonable person could possibly support an instrument that sets out in black and white a right to life, to a fair trial, to respect for private and family life, to freedom of conscience and religion, freedom of expression and association, but subject in many cases to restrictions that are accordance with law and necessary in a democratic society. And prohibitions against torture and inhuman or degrading treatment or punishment, and against slavery and deprivation of liberty.

    Such terrible liberal things for *other people* to demand. Although for some reason, you rarely see someone saying they don’t want them for themselves.

    More to the point, what authoritarian nationalistic populist could possibly support anyone having any rights that they might be able to rely on in court to protect themselves against the overwhelming power of the state. Particularly refugees, elided with people seeking asylum, elided with immigrants, elided with foreign criminals. It is almost as if they are not really people at all. Will he sort the sheep who deserve rights from the scapegoats who don’t? Maybe affix some sort of marking to the clothing of the latter, so we can concentrate them together in one place?

    Or perhaps if we adequately funded public services, such as the home office, and the police, and the border force, and the courts, and legal aid, we might be able to deal with disputed claims for asylum or for refugee statues is somewhat less than 27 year, or prevent deported convicted criminals repeatedly reentering the country, while also respecting that each person is a human being.

  7. “Had the statute instead been called the ‘Interpretation of Legislation and Powers of Public Authorities (Application of Articles of the European Convention on Human Rights) and Related Purposes Act 1998’ then maybe the act’s opponents would be less incensed.”

    They may well have been yet more incensed at the notion of the imposition of pesky “European law” on the UK, this impinging on that precious, hard-won “sovereignty”.

    Despite, of course, the EU and the ECHR being totally different entities.

    However, as others have pointed out: the main objection is simply that it prevents reactionaries from being reactionary, without consequences.

    1. Let’s give the ECHR an equally boring name then, such as the one that the international agreement signed by the UK in 1950 actually bears: it is the “Convention for the Protection of Human Rights and Fundamental Freedoms”.

      Being able to sign this sort of international agreement is exactly how a state demonstrates its sovereignty. You don’t need to protect sovereignty under glass, or save it up for a rainy day. You show that you have sovereignty by using it.

  8. “However, as others have pointed out: the main objection is simply that it prevents reactionaries from being reactionary, without consequences.”


    If the likes of Farage were more given to self-awareness and introspection they would realise that they are the reason the HRA is necessary in the first place…

  9. I think that some of the comments on this excellent blog ignore a rather fundamental point, which is that governments are the last people we should normally expect to defend, still less extend, our civil liberties. Oppositions some times promise to do so, eg Blair before the 1997 election, but usually come to regret it. Freedom of information is the best example of this. The price of liberty is eternal vigilance.

  10. Is there a good source of looking up the cases people had to ‘take to Europe’ before they could be heard in our domestic courts. I seem to remember there were some heart string tugging stories about the time, distance and cost of doing this? People need stories….and most won’t remember the ones there were.

    1. @Linda Gilroy EachOther (https://eachother.org.uk/50-human-rights-cases-that-transformed-britain/) has a good list of major human rights cases against the UK, and you will see that the number of successful cases taken to Strasbourg fell significantly after 1998, since many such cases could now be dealt with in the national courts instead. There are so many stories with which many people would empathise: e.g. Dudgeon v UK (criminalisation of homosexuality), Malone v UK (warrantless telephone tapping), The Sunday Times v UK (censorship of coverage of the thalidomide scandal), Smith and Grady v UK (homosexuals in the military), The Observer and The Guardian v UK (censorship of the ‘Spycatcher’ revelations), Goodwin v UK (transgender rights), Peck v UK (dissemination of CCTV footage of an attempted suicide), Z and others v UK (failure to protect children from abuse), McCann and others v UK (shoot-to-kill policy), Tyrer v UK (judicial corporal punishment), Golder v UK (access to justice), and many more besides.

  11. One of the biggest problems with human rights is that people forget that they have them.
    For example Article Six gives us the right to having our issues sorted out within a reasonable time, yet the waiting lists for the courts and tribunals are simply ridiculous.
    Added to that there is clear evidence that government policy is to deliberately introduce delays, particularly in the case of benefit claims: we are told that they deliberately reject claims without cause, in order to force people into the already overburdened appeal system.
    Employment tribunals are typically waiting a year or more: what use is that if you’ve been unfairly dismissed and want to have your job back?

    We should not put up with this wilful and systemic human rights abuse: everyone affected should be encouraged to claim compensation.

  12. This post seems to miss the point. The UK can perfectly well incorporate the European Human Rights legislation that it wants into a new UK only Act. Obviously NI would have to be carved out – another step on the welcome road to reunification with Eire.
    The issue is not what Rights should apply. I doubt any but the most rabid Tories are proposing simply trashing HR advances.
    The issue is who should decide and be accountable for both the codification of HRs and their enforcement. There is a very strong argument that in strong, functioning democracy with rock solid institutions – UK and US for example – the highest court and the highest legislative body should be domestic. The US survives perfectly well without being member of any of the international courts and acts. One could argue that citizen and human rights are more litigated – litigation is the life blood of rights – in the US than anywhere else. The results may not be perfect – Sumption’s objections to legislation by supreme courts is a strong argument against them – but they are unquestionably as good as Europe’s. Indeed Europe consistently falls short compared to First Amendment rights.
    I would have supported the UK remaining – Brexit is for the birds – but downgrading its ECHR level. The UK obvious had to accept ECJ supremacy but it never made sense to allow general law to be appealed to unaccountable justices elsewhere. That was a real “sovereignty” issue but of course had nothing to do with being in the EU.

    1. The Human Rights Act 1998 does the very thing that you advocate.

      We have already chosen which rights to being into UK law, by domesticating the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms through a “UK only” Act, such that UK courts can adjudicate in cases involving the human rights set out in Schedule 1 to the Act and so (most of the time) it is no longer necessary to take a case to the Strasbourg court. If we wished, we could amend and cut back Schedule 1, which lists the Articles of the Convention that have effect in the UK, but the upshot would be more cases heading to non-UK courts.

      You complain about “unaccountable justices”. In what sense are UK judges “accountable”? To whom and how?

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