7th October 2021
This week the lord chancellor and justice secretary – in 2021 – had to resort to a 2009 case – where the law had already changed in 2014 – to support his demand for an ‘overhaul’ of the Human Rights Act 1998.
That was telling.
Those opposed to the Act often seem to find it difficult to find topical examples of cases to substantiate their disdain.
Some resort to blaming cats (and I am not making this up).
And so, if it is not the actual substance of cases under the Act that explains the antipathy to the legislation, what is the explanation?
What are the actual reasons why the Human Rights Act 1998 is so hated?
I think there are four reasons.
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The first reason is its very title and its express mention of ‘human rights’.
For many this title seems alien – and provocative.
It is as if ‘human rights concerns’ are something you tell off foreigners about, rather than it being something that is of any domestic relevance.
The view seems to be that there is no need for ‘human rights’ in regard of the United Kingdom – for we have liberties.
This is, of course, misconceived – both in theory and practice.
In theory – because we have an executive under little or no day-to-day scrutiny, where state officials have unlimited power, and where the legislature has absolute power to make or unmake any law.
And in practice – taking torture, for example, there are documented examples of torture and inhuman treatment by United Kingdom agents in Northern Ireland, Afghanistan, Kenya, and elsewhere.
But we pretend that the United Kingdom is not like that – that we are always the good guys.
Yet the United Kingdom and its agents are as capable – both in theory and practice – of human rights abuses as in any other state.
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The second reason is that the rights that the are given effect by the Human Rights Act are (seen as) ‘European’.
This is a similar sentiment to the hostility to the European Union that contributed to Brexit.
And it is the ‘E’ word that seems to make all the difference.
The United Kingdom has human rights obligations under various United Nations instruments, and few know and fewer care.
We are also subject to fundamental obligations as members of international organisations such as NATO and the World Trade Organisation.
And those who jeer at the ‘E’ word will somehow be horrified at suggestions that the United Kingdom renege on its obligations under NATO and the World Trade Organisation, even if they limit our autonomy in defence and trade matters respectively.
The European Convention on Human Rights (ECHR), however, could not – for some – be more provocatively named.
Had it been called, say, the British convention – and many treaties are named after places – or the Winston Churchill convention, after one of the politicians who supported it – then, at a stroke, the regime would be less contentious.
That the the rights are seen as ‘European’ is, of course, a misconception.
The ECHR instead was formulated in part by British lawyers seeking to codify for post-war European what they perceived to be rights existing in our domestic law.
Had it been called the British convention or the Winston Churchill convention, it would not have been that misleading, given the United Kingdom’s contribution.
But instead the ECHR provisions – and thereby the Human Rights Act – are European.
‘Ugh.’
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The third reason is that the Human Rights provides rights for humans, including the humans many do not like.
The rights are not only for nice people but also for the Other: the people who are so bad or undesirable that many believe that they should be treated inhumanely.
For example: foreign criminals, domestic criminals, asylum seekers, and so on.
Why should these people have rights?
The sentiment is that such people should not have rights, because they don’t deserve them, or that they have forfeited them.
But that is the nature of human rights: you have them because you are a human.
But if the Other use their rights, then that ‘use’ is instantly converted to ‘abuse’.
You may ‘use’ your rights, but they – they ‘abuse’ their rights.
The notion is that those facing the coercive powers of the state – say incarceration or being separated from their families – should smile and nod along with that coercion, and certainly should not interrupt clapping and cheering those being coercive.
But it those who are facing the coercion of the state, especially those where there is no public sympathy, who are most in need of human rights.
If you think about it.
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The fourth reason is about the failure of the Human Rights Act to get ‘buy-in’ from certain media and political groups since its enactment.
Here there is a contrast with, for example, the United States – say if a citizen did not like a particular right in the Bill of Rights (for example, the right to bear arms), that citizen would be unlikely to be in favour of repealing the entire Bill of Rights.
But in the United Kingdom there are many who do not see that the rights in the Human Rights Act protect them as well as the Other.
And part of this is – in my view – the fault of the courts themselves.
After the Act took effect, the courts moved rapidly to ‘develop’ (that is, invent) a new tort of privacy.
A right that was enforced in cases against the media.
But the corresponding right of free expression enjoyed no similar ‘development’ – and over twenty years later, it is difficult to cite a case where the right to free expression has made a difference, let alone led to the ‘development’ of the law.
No United Kingdom journalist, unlike their American counterparts, would ever think to assert loudly and proudly their legal right under Article 10 to free expression.
Had the British courts made Article 10 (free expression) as meaningful as Article 8 (privacy) then the British press would be as horrified at the prospect of repeal of the Human Rights Act as the American media would be at the repeal of the entire Bill of Rights, including the right to a free press.
The populist media of the United Kingdom are not aware that the ECHR and the Human Rights Act protects (or should protect) them as well as the subjects of their coverage.
If the Article 10 right of free expression had been taken half-as-seriously by British judges as the Article 8 right to privacy, one suspects no politician would dare suggest ‘overhauling’ the Human Rights Act as a whole, let alone its repeal.
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As this blog recently averred, at the heart of the issue of the Human Rights Act is symbolism, not substance, and for both ‘sides’.
The Act does not actually do a great deal, but it does enough to make a difference in certain situations.
But the main reason for its repeal (or ‘overhaul’) seems to be the sheer symbolic value in doing so, and the main reason to oppose such moves is the equal-and-opposite sheer symbolic value in preventing those moves.
And so the Act is caught up in political and media battles that have little or no connection to the Act’s actual legal significance.
It is almost as if the Human Rights Act in the political and media imagination has an autonomous existence, distinct from the actual legislation and what that legislation does.
But.
There is a problem here.
A real problem, which sensible liberals should not ignore.
Some legislation – for example, equalities law – can start off controversial but will become less controversial as the years go by.
Laws such as the Race Relations Act were – believe it or not – controversial at the time.
The Human Rights Act – twenty-one years after it took effect – remains controversial and – in good part – unloved.
It has not simply become embedded as part of the political consensus.
And that is a failure.
A failure that cannot be wished away.
So there is a question for all sensible people, who support human rights in general and the ECHR in particular: are there better ways of protecting these substantive rights than by the Human Rights Act?
For it is those substantive rights, and their availability to those who need to use those rights, that are the important things, and not their legal form.
The Human Rights Act 1998 is still not a popular piece of legislation in 2021, and unless those who value human rights think constructively about other ways of enforcing those same rights, there will be a risk that the Act and the rights it provides for will all topple together.
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