Letting public authorities loose: The dangers of repealing the Human Rights Act – Alice Donald
19 May 2015
With the post-election dust barely settled, the Human Rights Act is firmly in the Conservatives’ sights. Caught in the crosshairs is section 2 HRA, which requires UK courts to take into account, but not necessarily follow, the case law of the European Court of Human Rights.
Also under fire is Article 46 of the European Convention, which makes Strasbourg judgments against the UK binding upon it in international law. This much is clear from the ‘Grayling paper’ of October 2014, the Conservative manifesto, remarks made by Lord Faulks in the pre-election Justice debate (analysed here by Mark Elliott), and post-election comments by David Cameron.
Absent from this debate is the fate of other provisions of the HRA, among them section 6, which requires public authorities to act compatibly with Convention rights unless primary legislation requires otherwise, together with remedies for breach provided for in sections 7 and 8.
The duty on public authorities was vaunted at the HRA’s inception as the vehicle by which human rights would be taken out of the courtroom and into the classroom, care home, hospital ward or police station. Jack Straw described the Act as an ‘ethical bottom line for public authorities … Unifying, inclusive and based on common humanity’.
This post addresses two questions. First, what difference has section 6 made? Secondly, is a Conservative-designed bill of rights likely to retain the duty on public authorities in its present form?
A wealth of evidence exists as to the impact of the HRA on the lives of people in the UK. As I have argued elsewhere, it tells a compelling story about the Act which differs fundamentally from the prevailing negative and litigation-focused narrative (see also the work of RightsInfo, Equally Ours and the British Institute of Human Rights).
The majority report of the Commission on a Bill of Rights (para 6.48) notes that most respondents considered the duty on public authorities to be of ‘fundamental importance’ and to have had ‘a positive impact on the everyday lives of individuals’. Regrettably, the evidence contained in hundreds of submissions to the Commission about the beneficial influence of the HRA (here and here) is barely reflected in the report.
Take, for example, the Family Rights Group, which states that the HRA has made ‘a profound difference’ to families who rely on it to ensure fairness in decision-making concerning, for example, removal of children from the home and adoption. Or MacMillan Cancer Support, which ventures that:
The HRA has … had considerable impact outside the courtroom. Its provisions have often made it possible for individuals and families to challenge their treatment by public authorities, and to succeed in vindicating their rights, without having to go to court.
The HRA helps to ensure that public authorities respect and protect the rights of groups who are especially vulnerable to neglect or abuse, such as older people (see here and here), women and girls at risk of violence, and people with learning disabilities (see here and here).
Some public authorities have used the HRA as a basis for making decisions, balancing competing interests, setting priorities, training staff, designing services and interacting with people using those services – sometimes with transformative results. As I have previously reported (here and here), NHS Trusts have been supported by the Department of Health to take this root-and-branch approach to implementing the HRA.
In a different setting, the HRA was integral to the reform of policing in Northern Ireland. The Act also sets the standards of the bodies that inspect or handle complaints about public authorities, such as the Care Quality Commission and the Independent Police Complaints Commission.
At the same time, the impact of the HRA on public authorities should not be overstated. In many, a minimal, risk-based approach to human rights compliance has taken precedence over a positive culture of implementation (as I have argued here). In particular, public authorities do not always understand or act upon their positive obligation to take proactive steps to secure human rights and not merely to restrict their interference with them.
This is hardly surprising given the incessantly hostile discourse about the HRA at Westminster and in much of the press. The human rights culture foreseen by the HRA’s drafters is invoked by Conservative politicians and the newspapers that support them more often in pejorative than laudatory terms. A common theme is the alleged propensity of public authority decision-makers to allow ill-founded considerations about individuals’ rights to trump public interests.
In August 2011, in the aftermath of riots in several English cities, David Cameron stated that human rights law, and its interpretation by courts, had,
exerted a chilling effect on public sector organisations, leading them to act in ways that fly in the face of common sense, offend our sense of right and wrong, and undermine responsibility.
Some myths continue to circulate long after they have been refuted: for example, the erroneous assertion that the HRA prohibits police from circulating posters of criminals, propagated by the Daily Mail, was repeated by the prime minister despite having been debunked by both the Director of Public Prosecutions and the police force concerned.
No evidence has been adduced to suggest that misapplication of the HRA by public authorities is either endemic or insuperable. Yet, the persistence of such myths creates a difficult environment in which to promote implementation of the HRA.
Commission on a Bill of Rights
The Commission on a Bill of Rights provides further pointers as to the Conservatives’ intentions. The majority report does not explicitly endorse the retention of the duty on public authorities (as it does, for example, section 4 HRA, which gives higher courts the power to make a declaration of incompatibility where a provision of primary legislation cannot be interpreted compatibly with the Convention (para 96)). However, the majority concludes (para 95) that the mechanisms in a future bill of rights should be ‘broadly similar’ to those in the HRA.
It also makes the welcome recommendation (para 97) that any reform of human rights law should expand the definition of ‘public authority’ in section 6, given the problems created by the restrictive interpretation of the term by the courts and the increasing outsourcing of publicly-provided functions to private and third sector organisations (a loophole only partially closed by the Care Act 2014 in respect of social care providers).
The minority report by Antony Speaight QC proposes (p. 276) a significant weakening of the duty on public authorities. Under his proposals, the duty to comply with ‘constitutional rights’ would not apply,
if as the result of primary or subordinate legislation the authority could not have acted differently, or the authority was acting to give effect to primary or subordinate legislation; (b) to the extent that the authority’s act or omission was reasonably justified by the standards of the UK’s heritage of rights and freedoms (emphasis added).
The removal of the higher courts’ power to quash subordinate legislation and the extraordinarily vague nature of the second proposed caveat would narrow the effect of the duty to the point of being meaningless. In addition, Speaight proposes (p. 277) making the granting of damages or relief conditional on whether the applicant ‘has discharged his responsibilities’ (a conclusion disowned by the majority (para 100)).
Martin Howe QC, currently occupied with drafting the Tories’ British Bill of Rights and Responsibilities, does not elaborate on possible reform of section 6, but says (at p. 216, in the first of his two minority reports) that he is in ‘broad agreement’ with Speaight’s analysis of the mechanisms in the HRA and ‘his suggestions as to how those mechanisms might be reformed or improved’.
Risk of going backwards
What would be the practical effect of such reform? Optimists might argue that the duty on public authorities is now sufficiently rooted in public authorities’ decision-making that they would continue to act as if section 6 was still in force. Assuming the UK remains a party to the ECHR, public authorities would be prudent to do so, given the continuing prospect of claims in Strasbourg by victims of decision-making processes that – shorn of their present sensitivity to human rights compatibility – would be at greater risk of being found in breach of the Convention.
This view would, however, be unduly complacent. The signal sent to public authorities by any weakening of the duty risks sending the steady progress in implementing the HRA into reverse. It cannot be assumed that without the hard-edged legal obligation embodied in section 6, public authorities would continue to embrace the standards and principles enshrined in the Convention in their day-to-day work. Rather, especially as spending cuts bite, they would be likely at best to adopt a defensive strategy of ‘Strasbourg-proofing’.
It’s time to tell the story about the HRA’s impact on all our lives – before it’s too late.