The Menace That Wasn't
The Menace That Wasn't
Date: November 11, 2004
Source: "The Menace That Wasn't" The Economist. November 11, 2004.
About the Author: This article is an unsigned editorial by an editor of The Economist, a London-based weekly magazine devoted to economic and political subjects.
The 1998 Human Rights Act, passed in 1998 and entered into force in October 2000, incorporated the provisions of the European Convention on Human Rights directly into British law. The convention is a legal instrument adopted by the Council of Europe in 1950. The Council of Europe is not to be confused with the European Union; the Council of Europe was formed in 1949, whereas the European Union was formed in 1992. Confusingly, at least to non-Europeans, both are headquartered in Strasbourg, France; moreover, the Council operates the European Court of Human Rights (established by the European Convention on Human Rights), while the European Union operates the European Court of Justice. The two organizations are completely distinct, apart from some overlap in membership.
The convention, which was the basis of the 1998 act, contains a number of articles: right to life, prohibition of torture, prohibition of slavery, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private life, right to freedom of thought, right to freedom of conscience and religion, right to freedom of expression, right to freedom of assembly and association, right to marry, right to an effective remedy, and prohibition of discrimination. All of these prohibitions are now part of British law. The significance of this, however, is debated.
The Menace That Wasn't: The Human Rights Act Has Not Lived up to Expectations. Good.
TAKE a common law system steeped in precedent and tradition and add a dash of fundamental rights. What do you get? Four years ago, Jack Straw, then the home secretary, made a confident prediction. By incorporating the European Convention on Human Rights (ECHR) into English law, he claimed, the nation would acquire something like America's Bill of Rights. Public authorities and the government would henceforth be bound by a "fairness guarantee" and would no longer be able to treat ordinary citizens according to whim. More than that, a Human Rights Act would create universal values for all and "act as a compass as society moves through the uncharted waters created by global change."
A less benign, but equally confident, view is that the human rights compass has led Britain astray. Tabloid newspapers report that the Human Rights Act has brought nothing but chaos. Undesirable minorities such as asylum-seekers, gypsies, and prisoners are said to have harnessed innocent-seeming "rights" to liberty and family life in such a way as to trample everyone else's liberties. Ever on the lookout for an issue with popular traction, the Conservative Party has pledged to review the Human Rights Act with the strong hint that some of its provisions will be undone.
This is splendid politics, but the problem is that the incorporation of the ECHR into domestic law has not come close to meeting reformers' hopes—nor has it confirmed conservative fears. "It has been a bit like the millennium bug," says Luke Clements, who follows human rights law at Cardiff University. Even Dominic Grieve, the Conservative shadow attorney-general, concedes: "the view was that it was going to lead to a legal free-for-all, and I don't think that has happened."
A count of cases heard in the high courts of England and Wales between 2000 and 2002 found that human rights claims were considered in 431 cases and upheld in just 94. Keir Starmer, a barrister who contributed to the study, says things have moved on since then: he has four appeals pending, all of which involve human rights in some way. But just because judges now have a new standard by which to assess the claims of plaintiffs doesn't mean they will reach a different decision. "Hand on heart," Mr Starmer says, the Human Rights Act has changed the outcome of only a very few cases.
That is partly because the common law turned out to be more accommodating than many reformers or traditionalists suspected. Four years ago, some feared that, because Britain lacks a written constitution or bill of rights, the stark language of the ECHR would sweep aside centuries of legal precedent. Faced with a potential clash between two traditions, though, judges have simply declared them to be complementary, or even claimed that the ECHR "reveals" ambient human-rights principles in the common law.
For the most part, such philosophical niceties are unnecessary. Away from the high courts and the few London legal chambers that specialise in human rights cases, ECHR principles are rarely invoked. When they are, says Tony Kershaw, the principal solicitor at West Sussex county council, they are invariably "bolted on" to mundane claims in order to make them seem more solid. "No lawyer can hope to win a case based solely on human rights," he believes.
That holds true even for lawyers representing gypsies and travellers, who often assert the right to private and family life when facing eviction from illegally occupied land. Chris Johnson, a solicitor who represents gypsies, says that many people (including his clients) believe cases are transformed by "a sprinkling of magic human-rights dust." They are usually disappointed. The Human Rights Act has neither enabled more cases to be brought, nor made them much easier to win, since judges are still obliged to weigh individual rights against the common good. Even when decisions go the gypsies' way, they turn out to have limited application. Mr Johnson believes that a new planning bill will have a greater effect than all the court cases put together.
On the rare occasions when human rights have upset the apple cart there was usually a pressing need for change. A good example is privacy law: cases brought by Naomi Campbell, a model, and Princess Caroline of Monaco have recently jeopardised the trade in paparazzi photographs. Legislation could swiftly resolve the issue one way or the other, but the government is loth to cross the newspapers. So human rights law must clean up the mess.
Even in Westminster the Human Rights Act has been domesticated. Every item of legislation is now scrutinised by the Joint Committee on Human Rights to see if it complies with the ECHR. Some of the Home Office's wilder initiatives—such as a proposal to deny housing to asylum-seekers unless they do community work—have failed that test. But what looks like a clash between parliamentary sovereignty and fundamental rights is in fact just a new front in an old political battle. As Lord Lester, a committee member and a long-time campaigner for human rights, puts it, the committee supplies weapons—in the form of critical reports—which other parliamentarians use to attack legislation.
The mythical status of the Human Rights Act is such that almost every unpopular decision is now blamed on it. But Mr Clements, at Cardiff, believes there may be a more mundane explanation for the liberal drift in judicial thinking: staff turnover. "These days," he says, "there are simply more right-wing judges than very right-wing judges."
The Human Rights Act was passed by the Labour Party after it took control of Parliament in 1997; passage of the act had been a campaign promise of the party. A white paper issued by the new government explained that although the UK was bound by international law to observe the European Convention on Human Rights, there was no means of applying the convention directly in British courts. With the bill's passage, it would be "unlawful for [British] public authorities to act in a way incompatible with the convention rights." Where previously it would have taken a great deal of time and money for a British citizen to take a case based on the convention to the European Court of Human Rights in Strasbourg, it would now be possible for that citizen to take the same case to a UK court.
Since its passage, the act has been invoked in relatively few British cases. Perhaps most significant have been challenges to alleged antiterrorism provisions of British law enacted since September 11, 2001. Thirteen foreign terror suspects were, as of 2004, being held without charge in a London jail on the strength of emergency detention measures passed as part of the Terrorism Act in 2001. The House of Lords ruled in December 2004 that their detention without charge violated the Human Rights Act of 1998. The Labour government's response was to pass (with difficulty) the Prevention of Terrorism Act of 2005, which among other provisions states that the British home secretary, who is roughly the equivalent of the U.S. attorney general, the primary government official responsible for law enforcement, can putatively issue antiterror "control orders" that bypass human rights laws. Passage of the controversial bill pitted the House of Lords against the House of Commons, creating a legislative crisis. The Prevention of Terrorism Act has been widely criticized by groups such as Human Rights Watch.
Many members of the Conservative party vigorously oppose the Human Rights Act. In 2005, party leader Michael Howard stated that "[t]here are too many people in Britain today who hide behind so-called human rights to justify doing the wrong thing. 'I've got my rights' has become the verbal equivalent of two fingers [an obscene gesture] to authority." In particular, Conservatives have claimed that gypsies are empowered by the Human Rights Act to trespass on public land. Several lower courts upheld an appeal by a gypsy family against an eviction order by the city of Leeds in 2005, but the appeal was ultimately overturned by a court of seven members of the House of Lords (March 2006). This would seem to uphold The Economist's thesis that the Human Rights Act has not greatly changed British law.
Council of Europe. "Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocol No. 11." 〈http://conventions.coe.int/treaty/en/Treaties/Html/005.htm〉 (accessed May 2, 2006).
Secretary of State for the Home Department (U.K.). "Rights Brought Home: The Human Rights Bill." October 1997. 〈http://www.archive.official-documents.co.uk/document/hoffice/rights/rights.htm〉 (accessed May 2, 2006).