23rd June 2022
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“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was ‘Oh no, not again’.”
– Douglas Adams, The Hitchhikers Guide to the Galaxy
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Legal and constitutional commentators are the petunias of the modern age.
The current bout of constitutional excitements started in around 2015, and these excitements have carried on relentlessly since.
Again and again the government has threatened to do something – or done something – drastic in respect of our constitutional arrangements.
Seven or so years later it is rather exhausting to keep up.
And giving up is tempting.
But keep up we must, as these are serious matters – even if government and its political and media supporters do not take them seriously.
For the political and media supporters of government will clap and cheer at each of these constitutional disturbances – and will delight in the ‘libs’ being ‘owned’.
Well, this ‘lib’ is more bored than owned.
But commentary must be offered, if only as a corrective to the narratives of those currently in power and those who support them.
And so this is the story of the Human Rights Act 1998 and the supposed “Bill of Rights” with which the government wants to replace it.
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Before the Second World War, a certain sort of English person would have boasted not of having rights but of having liberties.
The notion was that an English person was free to do whatever they wish, unless it was prohibited.
The self-image was of a robust anti-authoritarianism – and it was an image which gained wide purchase.
And to an extent it was a fair depiction – the powers of the Crown had generally been made subject to Parliament, and most exercises of state power could be contested before a court.
But.
The Victorian doctrine of parliamentary supremacy – which asserted that Parliament could make or un-make any power it wanted – had as an unfortunate implication that the subject was powerless in the face of a determined executive dominating the legislature.
This implication was noticed by, among others, a Lord Chief Justice – Lord Hewitt – who in 1929 published The New Despotism warning of the illiberal power of the British state.
And in the Second World War what Hewitt warned of in theory was carried out in practice with the government’s use of the defence regulations.
For all the comforting self-image, there was not in practice robust English liberties that would actually protect the subject against the king’s government – let alone the citizen against the state.
Perhaps there never had been.
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Following the Second World War there was a spate of international conferences and organisations that purported to declare and protect rights.
One of these, of course, was the European Convention on Human Rights.
This convention provided for a number of rights, contained in articles.
Some of the rights were set out in the original convention, and some were added in later protocols.
The convention was connected to the Council of Europe, which now comprises most European states:
By being party to the convention, a country agrees to be bound by the convention as a matter of international law.
Some claim that the convention was promoted by Winston Churchill and drafted by Conservative lawyers – but their contribution should not be overstated (see this fine book for what did happen).
The United Kingdom at the time the convention was ratified in 1951 did not see the convention as controversial or as being inconsistent with domestic law.
The convention did not only provide for rights but it also established a court to determine whether any signatory – as a matter of international law – was in breach of its obligations under the convention.
That court is the European Court of Human Rights in Strasbourg, of which you may have heard.
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What happened next is not widely known.
As is described in a House of Commons library paper:
“Although the UK ratified the European Convention on Human Rights in 1951, it was 1965 before the UK Government declared, by an option under then Article 25 of the Convention, that it would accept the jurisdiction of the Court in relation to individual complaints. The optional clause was debated in late 1980, amid charges that the Court was “interfering with the exercise of parliamentary sovereignty” and “limiting [the UK’s] freedom of action”, but in 1981 and subsequently it was accepted for five more years. In 1994, during the negotiation of Protocol 11, the UK tried in vain to ensure that the right of individual petition would remain optional. The Government thought the Court had too much power, and the possibility of non-renewal of individual petition would act as a check on its authority.”
The United Kingdom did not allow anyone to actually petition the Strasbourg court until 1964.
And until relatively recently – the mid-1990s – governments of all parties resisted the reach of the Strasbourg court.
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This resistance had the following effects.
First, it created immense costs and delays for individuals who wanted the United Kingdom to comply with its international obligations.
For example, in the case of Malone – in my view, one of the most important constitutional cases in the last hundred years – a 1977 incident did not reach a Strasbourg judgment until 1984.
There the Strasbourg court held that any surveillance of the individual by the state had to have a lawful basis.
The English court had held, in effect, that just as it was open to any subject to do as they wish unless prohibited, it was also open to state bodies to do as they wished unless prohibited.
That’s robust English liberties, for you.
The Malone decision in turn led to the United Kingdom placing its surveillance regime onto a legal – and thereby legally contestable basis.
But it took seven years for the judgment to happen.
Second, it meant that lawyers developed various means of referring to Strasbourg jurisprudence in domestic courts.
I remember seeing this article as a law student in the mid-1990s:
By then it was getting rather silly.
A United Kingdom litigant seeking to rely on their convention rights had to go to the cost and delays of going to Strasbourg, or had to find a clever lawlerly way of relying on Strasbourg caselaw in a domestic case.
But what that litigant could not do is rely on their convention rights in a straightforward way before the domestic courts – even though the United Kingdom was bound by the convention (and by the Strasbourg court’s interpretation of the convention) as a matter of international law.
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And then, in 1997, the electorate of the United Kingdom returned a Labour government:
Things could only get better, or so people thought.
And one thing the government did to make things better was to introduce legislation so that the convention could be relied on in domestic courts.
This would not only solve the increasingly absurd problem of the costs and delays of individual petition and indirect reliance, it also gave effect to a key provision of the Good Friday Agreement which was signed in April 1998.
One of the express bases of that agreement was that the convention had to be capable of being directly enforced in the courts of Northern Ireland – in particular against the Northern Irish Assembly:
And so the Human Rights Act 1998 came into being, which allowed direct access to the courts for breaches of the convention, and not just for those in Northern Ireland.
As the government of the day boasted in an allusion to the popular football song: rights were brought home:
The Act took effect on 2 October 2000.
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But.
The Human Rights Act never gained universal support.
This is for, I think, two main reasons.
First, the popular media disliked how English judges created an entirely new tort – misuse of private information – on the back of the 1998 Act.
The Act does not expressly provide for any such cause of action.
But case-by-case, the courts crafted a new basis for suing for breaches of privacy.
And the courts did not ‘develop’ the corresponding right of free expression in any comparable way.
Few reporters and editors came to see the Human Rights Act as an instrument that would protect them like their American counterparts who could point to their constitutional rights.
Second, the politics following 2001 and 9/11 pushed against human rights protections.
It is difficult to imagine the Human Rights Act being enacted after 2001 had it not been enacted before.
The Labour governments became more illiberal, as anti-terrorist act followed anti-terrorist act.
And by 2006:
Human rights may well have come home – but they were now unloved by the Act’s own parents.
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At this time, the then-opposition Conservatives were becoming even more opposed to the Human Rights Act than the Labour government.
So also in 2006:
The 2010 Conservative manifesto (twelve years ago):
“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
The 2015 Conservative manifesto (seven years ago):
“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”
The 2017 Conservative manifesto (five years ago) placed a foot on the ball:
“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”
And then most recently, in the 2019 Conservative manifesto:
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
As it happens the government elected on the back of that latest manifesto is not prosing to “update” the Human Rights Act but now to repeal it – at least in form.
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Alongside these manifesto commitments, there have been various attempts to find a practical way of repealing or updating the 1998 Act.
In 2011 there was a commission established by the government:
But this went nowhere.
In 2014 the then justice secretary launched a new attack at Conservative party conference.
And that went nowhere.
And in 2015-16, the then prime minister was again about to take on the Human Rights Act – and may well have done so but for Brexit:
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And now, in 2022, we have yet another attempt to repeal the Human Rights Act, twenty-five years after the Human Rights Bill was introduced by the incoming Labour government.
The difference now, however, is that the proposals have reached the stage of draft legislation before Parliament.
And the justice secretary proposing the new legislation, Dominic Raab, is a long-term opponent of the Human Rights Act and was the junior justice minister under Cameron responsible charged with finding an alternative to the Act.
In effect, the Human Rights Act is Moby Dick to Raab’s Captain Ahab.
It does not matter that the criminal justice system is in crisis, scarce ministerial time and departmental resources will be devoted to repealing the 1998 Act.
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The 1998 Act is unlikely to survive this assault.
There is enough time for the bill to pass before the next general election, and there is sheer determination to get the bill through.
But.
The essentials of the Act will remain.
The Good Friday Agreement will still require that the convention can be given direct effect in the courts of Northern Ireland.
The United Kingdom will still be bound by the convention as a matter of international law.
If the domestic courts do not protect convention rights then litigants can still go to Strasbourg.
The United Kingdom will still be required to comply with the decisions of the Strasbourg court.
And resourceful lawyers – and judges – will still find ways of referring to Strasbourg jurisprudence in domestic courts when determining convention rights.
And so one consequence of the new bill is that cost and expense will be added to the process of relying on convention rights under a treaty that will still bind the United Kingdom under international law.
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As this blog set out yesterday, the core of the new bill is the same as the 1998 Act.
The convention rights are still listed in the schedule; the definition of convention rights is the same; and the key obligation on public authorities to comply with the convention is also the same.
What the bill does is to introduce a number of provisions that will make it far more difficult for litigants to rely on those rights in domestic courts.
Over at the blog of Professor Mark Elliott there is an outstanding post – written within a day of the publication of the new bill – that details all the new legislative contraptions and devices, the purpose of which is to inconvenience the litigant seeking to rely on their convention rights.
Elliott’s post should be read and circulated as widely as possible.
And Elliott’s conclusion is compelling:
“the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights.”
And this is why – jaded and fatigued as any sensible person must be who is keeping up with this government’s ongoing attack on our constitutional arrangements – we have to be vigilant about this latest exercise in limiting the ability of individuals to rely on rights which the United Kingdom is bound to protect by international law.
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The government is not – and cannot – take the United Kingdom out of the European Convention of Human Rights – at least not without breaching the Good Friday Agreement.
The government is still obliged to give effect under international law to the rights contained in convention – and individuals will still have the right to petition the court.
But after twenty years of trying, the current government party has put forward the means of attacking the Human Rights Act by limiting the ready enforcement of these rights by individuals.
And so as a bowl of petunias once no doubt thought: brace, brace.
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