Two prominent public law barristers spoke last night on the future of the Human Rights Act at the annual seminar organised by the Constitutional and Administrative Bar Association.
The seminar had a special significance as the HRA has just celebrated its 10th birthday. Both speakers looked to the future of the act in light of the coming budget cuts and economic austerity policies.
Alex Bailin QC began by reviewing the case-law developments over the past year (his talk can be downloaded here). One point which stood out was the ever-complex dialogue between the UK courts and their Strasbourg-based cousin, the European Court of Human Rights. Since the incorporation of the European Convention on Human Rights into UK law, the UK courts and government have not always acted consistently with regard to decisions of the Strasbourg court. Bailin said that dialogue is currently at a “very intense phase“, thanks in part to a number of rulings which have criticised UK anti-terrorism policy. We have covered the key topics here, for example police stop and search powers, DNA retention and control orders.
Bailin cited the control order and stop and search cases as examples of the dialogue working. In both cases, UK policy has been reviewed and the courts have responded too. The DNA retention decision (S & Marper v UK) exhibits some inherent problems in the structure of the HRA, and in particular the fact that lower courts cannot take Strasbourg decisions into account if the UK House of Lords (now the Supreme Court) has come to a different conclusion (see our post). In the meantime, over a million non-convicted persons whose DNA has been retained must wait for the government to change the law.
However, the “worst” example of the relationship is the continued inaction on the part of the UK to implement the 2005 decision in Hirst v UK (No.2), in which the Strasbourg court ruled that prisoners should be given the right to vote in elections.
Meanwhile, a number of recent court decisions may be leading towards a “head-on clash” between the UK Supreme Court and Europe: in particular R v Horncastle, in which the Supreme Court held that s.2 HRA only requires the domestic courts to take into account Strasbourg case-law, not slavishly to follow it.
In his conclusion, Bailin asked whether, 10 years on, we had started to reach the boundaries of he HRA. Clearly this is an open question, but he rightly answered by giving an example of how far we had come in just a decade. In the recent litigation relating to Guantanamo Bay detainees, the UK courts have repeatedly used the HRA to prize open the formally closed world of the intelligence services. In one of the judgments, Lord Neuberger, the head of the Court of Appeal, said that “at least some SyS officials appear to have a dubious record when it comes to human rights and coercive techniques” Compare this to the passage cited by Bailin from a 1991 judgment in which the Court of Appeal approved the comments of Lord Denning. The contrast speaks for itself:
There is a conflict between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the Home Secretary … In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England.
Human rights in the age of austerity
The second speaker, Jonathan Swift QC, is First Treasury Counsel, which means that he is effectively the joint most senior government barrister. He has appeared in many of the most significant public law cases of recent years.
He looked at the potential effects which the coming ‘age of austerity’ would have on human rights litigation, and whether the focus of cases is likely to change. I argued recently (see here) that the ‘age of terrorism’ was now ending for human rights campaigners, and that the battleground would now be, to paraphrase Bill Clinton, the economy, stupid.
Swift began by saying that whatever the focus of litigants, the courts will generally be unwilling to entertain challenges to macro-economic policy, that is to the larger aims of the national budget. However, certain government policies may be challenged: for example, the proposed immigration cap and the equality impact of public sector cuts.
Article 1 of Protocol 1, the right to the peaceful enjoyment of property, is now likely to take centre stage. For example, if capricious government cuts lead to jobs disappearing, this may amount to a breach of property rights. The general focus of such cases has been the concept of “fair balance”, between the wider priorities of public authorities and the effects they have on individuals. Swift highlighted the potential difficulties in arguing before a court that a multibillion pound deficit must come second to a job worth a few thousand pounds. Of course, this problem is not new and there will always be clever lawyers to suggest more appropriate comparators.
Playing Robin to Article 1 Protocol 1′s Batman, said Swift, will be Article 8 (the right to family life). Most public authority decision which affects individual lives can also be seen in light of the right to family life. In a recent example, the House of Lords may have instituted a positive obligation on the state to provide housing to asylum seekers.
Another potential arena for human rights challenges relates to the ‘value for money’ or otherwise of government contractors. The new government is keen on outsourcing to the private sector, and this means that the question of what is a public authority will be further examined. Section 6 of the HRA provides that only public authorities can be challenged, and the term has proved to be somewhat elastic.
Much to look forward to
The ALBA seminar provided a good opportunity to take stock of how far the HRA has taken UK law since its introduction 10 years ago. In combination with the new Supreme Court, the UK under the Human Rights Act has undergone something of a constitutional revolution, and this is clearest in the run of stinging defeats which the government has suffered in anti-terrorism cases.
But with a new government, a poor economy and a (hopefully) receding terrorist threat, the focus of the HRA should now shift to economic issues. If if does, this may even result in a better public perception of human rights protections, which are, after all, not just for terrorists but for everyone. Whatever happens, there is clearly much to look forward for those with an interest in human rights.
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