The UK government has just set out its intention to abolish the Human Rights Act and reduce the influence of the European court of human rights (ECHR), as a ‘restatement of Britain’s sovereignty‘. But historically, was the Human Rights Act 1998 ever a necessary and desirable piece of legislation?
The Act was undoubtedly a necessary statute in the sense that, at its time of drafting, Britain was in need of a reaffirmation of its role as a ‘rights-respecting liberal democracy’; the outgoing Conservative government frequent peacetime intruders upon civil liberties. However, the Act has proven itself undesirable for the state in tackling the threats posed by twenty-first century terrorism. A common theme within this article will be not only be the conflict between the interests of the individual and the state, therefore, but the battle between symbolism and practicality. It will explore the symbolic necessity of a universally applicable ‘piece of legislation’ within the statute-books, before exploring contemporary case law demonstrating the practical hurdles such legislation poses government. It will be this article’s contention that the Human Rights Act was ultimately a necessary step in the symbolic process of British rights protection at the time of its drafting. However, 21st century threats have made it an undesirable limitation upon the state in upholding its primary function – the safety of its citizens.
There is a broad consensus that the necessity of the HRA 1998 lays in its answer to a ‘paradox’ within the British legal system. Whilst often coupled as the foundations of Britain as a liberal democracy, Parliamentary Sovereignty was serving as an obstruction upon the Rule of Law. ‘What the Queen in Parliament enacts is law’, regardless of the implications on the individual and the lack of legally enforceable guarantees against tyrannical government. Moreover, Parliamentary Sovereignty presupposes the United Kingdom as a dualist state. As the Miller judgement explained, ‘treaties are not part of UK law and give rise to no legal rights or obligations in domestic law’ without legislative consent. Therefore, regardless of the United Kingdom’s ratification of the ECHR, the remedies it afforded were unavailable in the domestic courts. The act was therefore Parliament’s necessary means of granting the ECHR domestic justiciability. However, this explanation overlooks the fact this ‘paradox’ only called for some incorporation of the Convention. For instance, in granting justiciability, ‘sector-monism’ may have been employed; a singular provision within forthcoming statute declaring that the provisions of the bill must accede to the state’s international commitments; a common tactic of contracting states such as Norway. Therefore, the necessity of the HRA 1998 as a singular and universally applicable ‘piece of legislation’ must be explored.
Attitudes toward a British Bill of Rights changed during the 20th century. Where once the proposal was widely thought of as ‘eccentric’ and ‘wholly unnecessary’, two-thirds of citizens in 1986 supported an incorporation of the ECHR. Why they did so, it seems, was markedly political. Writing ten years before the HRA 1998’s implementation, Dworkin declared that ‘liberty is ill in Britain’. He accuses the leaving Conservative government of a ‘rejection’ of liberty’s value; ‘Thatcher’s people’ possessors of a ‘corrupting insensitivity’ to individual rights. He cites the 1986 Public Order Act, and the potential criminality of protestors, as well as the prosecution of Clive Ponting (for the leaking of records showing official misconduct) as violations of Art 11 & 10 ECHR, respectively. Albeit dramatic, Dworkin was correct in asserting that Britain needed a reaffirmation of its right-respecting nature. It was no coincidence that Margaret Thatcher’s government simultaneously had the worst record of any contracting state during the ECtHR’s infancy; the UK forced to abandon plans restoring corporal punishment in schools, and regulate ‘phone tapping’ by the Metropolitan Police Force, because of Strasbourg’s rulings. As a result of these persistent infringements, Dworkin declared that the British people no longer trusted their elected officials. To resurrect the ‘spirit of freedom’ within the nation, he posed the limitation of Parliament under a constitutional Bill of Rights, and more specifically, the European Convention. He finished, ‘though a written constitution may not be a sufficient condition for liberty to thrive again in Britain, it may well be a necessary one’.
Though the HRA 1998 may have fallen short of Dworkin’s radical wishes for an uncompromising limitation of legislative power, the HRA 1998 became a pillar of Labour’s ‘new constitutional landscape’; introducing a system of checks and balances previously barred. The Act theoretically preserved Parliamentary Sovereignty, unable to disapply legislation, yet its enshrinement above other acts as a ‘constitutional statute’ was clear. The Act was immune to implied repeal and, moreover, allowed the judiciary to scrutinise the compatibility of primary legislation with the ECHR; a power previously ‘beyond the constitutional Rubicon’. The necessity of the Act as a universally applicable ‘piece of legislation’, therefore, lays in the constitutional statement it made to the British people. It was a deviation from the path of the past government; the necessary ‘tonic’ for the erosion of civil liberties which had occurred the decade prior.
With immense foresight, Dworkin concludes his aforementioned call for a new bill of rights by declaring;
‘constitutional political events… define a nation’s character in symbolism that cannot be fully appreciated at the time. Margaret Thatcher’s long government will have been a constitutional event for liberty, one way or another, whatever happens.’
Dworkin, however, falls into his own trap. He fails to realise that the practical, and not merely ‘symbolic’, repercussions of these constitutional events also cannot be ‘fully appreciated at the time’. For the downfall of the HRA 1998’s ‘desirability’ lays in its obsolete response to twenty-first century national crises. Its obligations a burden upon ‘the first responsibility’ of Britain as a democratic state, ‘to protect and safeguard the lives of its citizens’. This ‘responsibility’ is identified by Lord Craighead following the UK’s Article 15 derogation from the right to liberty and security. For the state had determined a year after the HRA 1998’s implementation that the threat posed by foreign nationals in the aftermath of September 11th constituted a ‘public emergency threatening the life of the nation’; a danger so grave that the forthcoming Anti-Terrorism, Crime and Security Act 2001 could not be reconciled with its international obligations. The existence of this emergency was accepted, furthermore. Strasbourg employed the wide ‘margin of appreciation’ it often grants states in assessing threats, declaring the state as the ‘guardian of their own people’s safety’.
Domestic courts had once also shown such latitude – Liversidge v Anderson and Hosenball showcasing that where ‘the state itself [was] endangered… the courts have loyally followed’ executive direction. This deference, however, was brought to end in the Belmarsh 9 case. Part IV ATCSA 2001 introduced the indefinite detainment of those the Home Secretary reasonably believed a risk to national security. The House of Lords, ridding of decades of convention, declared the provision incompatible – Lord Roger alarmingly asserting ‘as with the Reichstag fire, national security can be used as a pretext for repressive measures’. This was a bold statement for a supposed ‘loyal follower’ to make. He did so, as Connor Gearty correctly identifies, because of the HRA 1998. ‘In past outbreaks of executive induced hysteria in Britain… there were no human rights around for the authorities to have to consider’. The Human Rights equation was ‘a distant one’, to be found in ‘Strasbourg rather than in the Law Courts on the Strand’. What Gearty fails to appreciate, however, is how this development is an undesirable one. The judgement had exposed the practical realities of the HRA 1998; a divergence apparent between section four’s function in practice as to that in principle. Whilst theorists are quick to assert that the declaration in principle has ‘no legal impact whatsoever’, they fail to look at this judicial power through political eyes. For the state to pursue detention without trial following the declaration in Belmarsh would be practically unthinkable; as shown in the court’s s.10 empowerment of a drafting minister arriving to an empty desk – the judgement a ‘final blow’ upon David Blunkett’s tenure as Home Secretary. The practical reality was that the Lords had sent Parliament back to the drawing board against its wishes – Pt IV ATCSA 2001 replaced by the Prevention of Terrorism Act 2005 less than four months after Belmarsh. The preservation of Parliamentary Sovereignty was not as ‘crystal clear’ as Lord Steyn originally had us believe.
Liversidge v Anderson might be regarded, per Bradley & Ewing’s ‘Constitutional and Administrative Law’ as “an example of extreme judicial deference to executive decision-making, best explained by the context of wartime, and it has no authority today.” ~ SolicitorMidlands.co.uk
Subsequent case law would expose even more undesirable facets of the HRA 1998. The obligation within s.2 HRA 1998 for judges to ‘take into account’ any ruling of the ECtHR has proved controversial in regards to what extent domestic courts should do so. The consensus appears to follow Lord Slynn’s understanding; ‘the court should follow any clear and constant jurisprudence of the European Court.’ It is this precedent which founds Bingham’s mirror principle in Ullah. Section 2 imposes a ‘duty’ upon the courts to keep pace with Strasbourg – ‘no more but certainly no less’. With considerable undesirability, it is this minimum standard of rights which ‘destroyed’ the control orders regime – Parliament’s successor to detention without trial. This is the sentiment within AF, a case which had the displeasure of following the Belmarsh appeal to the ECtHR. Strasbourg in its ruling declared the PTA 2005 infringing upon Art 6 ECHR (right to a fair trial) for not providing ‘sufficient information’ to appellants in ‘special advocate’ tribunals where sensitive information was often concealed from terrorist suspects. The Lords in AF, as a result of section 2, were bound to declare the new legislation incompatible – Lord Carswell noting, ‘the authority of a considered statement of the Grand Chamber is such that our courts have no option but to accept and apply it’.
The HRA 1998 in this instance had not only undermined Parliament once again, the PTA 2005 repealed with the Terrorism Prevention and Investigatory Measures Act, but also undermined the domestic judiciary. For the Lords in AF issued the declaration regardless of their opinion on Strasbourg’s ruling, Lord Hoffman allowing the appeal ‘with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy… a significant part of this country’s defences against terrorism.’ Hoffman had appreciated the responsibility of government to protect ‘British lives on British streets’, however was forced to compromise on this ‘cardinal principle’ because of the obligations within section 2. This was the second instance within five years that the HRA 1998 had shattered the government’s counter-terrorism regime, and given the importance of security to a state’s sovereignty, the act must be determined undesirable. Where its enactment had once served as a necessary step in reaffirming British values, within these cases it served as a burden upon public safety and that which government rests its authority – ‘its capacity to protect persons… from the invasions of others’.
It is ironic that those who began the call for individual rights in Britain are also those who first advocated the idea of the ‘primary responsibility’ of the state. Locke declared that political legitimacy resides within the social compact, and government’s ability to guarantee our natural rights and possessions. To protect individual citizens, he determined authority must be limited at all cost. However, what he failed to foresee was the scenario where citizens were endangered by the limitation of state power. The same can be said for the drafters of the HRA 1998. Whether it be Locke or Dworkin, reformists wrote to address contemporary fears, and their concerns so happened to constitute that of oppressive government. The HRA 1998 ought always to be determined a ‘necessary piece of legislation’ therefore – necessary in the sense that it constituted an adequate response to the concerns Britain faced within the 1990s. It is also why calls for repeal may be short-sighted – to repeal the HRA 1998 would be to risk the popular consensus in Britain that liberty is once again ‘ill’. However, it must be appreciated that the United Kingdom has since faced far greater threats, and the current judicial interpretation of the obligations within the act.
Written by a student on 18th March 2019. Used under licence. 2019-3-18-1552922077