Although the bill is likely to pass, it is likely to do so in slightly revised form – knowledgable tweeters were predicting that the domestic violence and clinical negligence provisions were most likely to be affected.
Meanwhile, over at the Commission on a Bill of Rights, the somewhat dysfunctional committee will be combing through responses to its recently closed consultation. I have collated some of the responses below, mainly from people who have sent them to me. What follows is an entirely unscientific summary.
In a fascinating new essay, Samuel Moyn, a history professor at Columbia University, examines the history of human rights. He concentrates on the concept of international human rights from a U.S. perspective, but many of his observations are highly relevant to those with an interest in UK human rights. As is often the case, examining the movement’s history provides interesting clues as to its future.
Moyn begins by recalling US President Jimmy Carter’s 1977 inaugural speech, when he said that “Because we are free we can never be indifferent to the fate of freedom elsewhere... Our commitment to human rights must be absolute.” Our own Foreign Secretary made a similar commitment after the May 2010 election. But whereas now the concept is well known, in 1977, Moyn says, many people had never heard of “human rights”, and no previous president had mentioned the concept in any substantive way. Interestingly, the current US president Barak Obama has barely mentioned human rights during his time in office, and this may well be a reaction to his predecessor George Bush’s invocation of human rights to justify the invasion of Iraq.
“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. … Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.” Eleanor Roosevelt (1958).
For human rights to matter, they must be made real first, at home, in those small places that matter to us all. After almost four decades of debate, it was in this vein that the Westminster Parliament, with Conservative Party support, voted to “Bring Rights Home” in the Human Rights Act 1998 (“HRA”). As we wake this morning to the front pages of two national newspapers decrying human rights “madness” and welcoming freshly minted (but fairly familiar) Conservative Party policy plans to condemn the HRA to history, this is a good message to remember.
The proposals are incoherent in their consideration of domestic law, incomplete in their engagement with the devolved constitution and disrespectful to the UK’s commitments in international law. They undermine the cause of bringing rights closer to home and seemingly have no care for progress of minimum standards in the wider world.
Anyway, eight months and one acrimonious resignation later, not to mention just over 5 months before the Commission is due to report, they are consulting again. This time, the consultation document is more substantial and provides some useful detail as to the kind of ideas being considered. The Commission has requested that those responding don’t repeat what they have already said. The deadline for responses is 30 September 2012. This must put the Commission’s deadline to report by the end of 2012 in some doubt, unless the point of the consultation is simply to confirm what it has already decided.
The Human Rights Act 1998 has been in force since October 2000. It incorporates into domestic law the rights and liberties enshrined in the European Convention on Human Rights, a treaty to which the United Kingdom is signatory but which until 2000 had no application in domestic law.
Whether one agrees or not with the way it has developed, the bottom line is that the Convention guarantees a range of political rights and freedoms of the individual against interference by the State. Signatory States to the Convention may not violate the right to life of their citizens, subject them to torture, inhuman or degrading treatment, press them into enforced labour, deprive them of their liberty without due process and compensation, deprive them of access to justice or a fair trial or introduce laws that impose retrospective criminal liability for acts that were innocent at the time they were committed. Individuals’ rights to privacy, freedom of religion, expression, association and assembly, to marry and found a family, may not be infringed without proper justification. The rights enshrined in the Convention must be guaranteed to each individual irrespective of sex or race and a range of other grounds. Because some of the rights oblige the State to respect the interests of citizens by imposing positive obligations on governments, this sometimes has the effect of enabling individuals to claim Convention rights in relation to each other. consequently the State, via its courts and legislation, is bound to secure compliance with those rights.
Before the incorporation of the Convention, individuals in the United Kingdom could only complain of unlawful interference with their Convention rights by lodging a petition with the European Commission of Human Rights in Strasbourg, which itself only referred the case to the European Court of Human Rights for a full hearing if it considered that the complainant had exhausted all his or her local remedies and that a range of other admissibility criteria had been satisfied. This process took on average five years, from the lodging of a petition to the publication of the Court’s judgment.
The EU Charter of Fundamental Rights
Although the Charter arose since the inception of the Human Rights Act, some commentators believe that it is a sharper weapon than the Convention because any of its provisions may be invoked as a point of EU law. Indeed, a High Court judge has recently commented that
it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed. (R(AB) v Secretary of State  EWHC 3453 (Admin), at )
This instrument, which was given legal effect by Article 6(1) TEU (the Lisbon Treaty), is controversial because it contains a range of rights some of which mimic those in the European Convention of Human Rights, others which go beyond the scope of the ECHR by appearing to grant social and economic rights to citizens of the EU, including the right to health care (Article 35), access to services (Article 36) and social security (Article 34). These are aspirational “rights” whose effect on the EU legislature has yet to be played out.
Although it has full Treaty force, the Charter does not extend the competence or powers of the EU (Article 51(2) of the Charter and Article 6(1) TEU). The jurisprudence of the European Court of Justice has long established the rule that the human rights aspect of Community law is only binding on member states when their actions engage EU law (Case 5/88 Wachauf and Case C-260/89 ERT ). However, EU law reaches far into the relationship between state and citizen and as a result the UK has filed an “opt-out” protocol in respect of the Charter, Article 1 of which states that it
does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms (Protocol No 30 of 2007)
The precise effect of this Protocol continues to be debated (Poland is also a signatory). See the effect of Article 1 of the Protocol in NS v Secretary of State and ME and others v Refugee Applications Commissioner and Another (Joined Cases C-411/10 and C-493/10). Suffice it to say thus far the Charter does not apply to disputes between private individuals, nor does it supersede the so-called ‘general principles of law’ which the CJEU has invoked to protect human rights for the past forty years. The Lisbon Treaty retains these ‘general principles’ as a distinct category according to the wording of Article 6(3):
Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
The UKHRB follows closely developments in the application and scope of the EU Charter provisions, which are unconnected with the ultimate fate of the 1998 Human Rights Act. Each of our Convention Rights pages cross references the corresponding right in the EU Charter.
What can be challenged under the Human Rights Act 1998?
Primary legislation, secondary legislation and the common law can be made the subject of an action under the Act, in addition to decisions and actions of public authorities.
There are limitations. Secondary legislation is subject to the rights set out in the Convention (s.3) but such legislation may be protected from challenge if the primary legislation under which it was made prevents it from being interpreted in a way that is compatible with Convention rights.
If the court is unable to construe a statute in accordance with the Convention it has no power to set it aside. However, it can issue a declaration under s.4 of the Act that the relevant statutory provision is incompatible with the rights set out in the Convention. Furthermore, litigants and judges alike are now alert to the possibilities of the EU Charter whose provisions may prevail over primary legislation by virtue of the European Communities Act 1972.
There is no specific procedure for applying for a declaration of incompatibility, although Civil Procedure Rule 19.4A provides that a court may not make a declaration of incompatibility unless certain notice provisions have been fulfilled. In general the process is analogous to that used for declaration by originating summons. Such a declaration imposes no obligation on Ministers to respond but the Act provides in s.10 for a remedial order to be made whereby the minister may introduce a statutory instrument to amend or repeal the offending provision. There is a “fast track” procedure of 40 days during which the proposed statutory instrument is laid before both Houses of Parliament before passing into law.
Section 6 makes it unlawful for all public authorities to act in a way which is incompatible with the rights in the Convention. “An act” includes the failure to act but does not include a failure to introduce legislation or make a remedial order pursuant to a declaration of incompatibility.
Who is liable under the Human Rights Act 1998?
In principle, the Act is only vertically effective, direct challenges may only be made to the actions of “public authorities”. However “public authority” is widely defined in s.6 to include central and local government, the courts, the police, immigration officers and “any person certain of whose functions are functions of a public nature”. A privatised utility such as Network Rail, for example, will be carrying out functions of a public nature in its role of regulating the railways and ensuring safety standards and in that capacity will be liable under the Act, whereas in its capacity as employer, it may not be liable. The dividing line between public and private functions is constantly being tested in the courts, as it has to be decided on a case by case basis. Both Houses of Parliament are excluded from the definition of public authority, a provision that was designed to exclude Acts of Parliament from direct attack under the incorporated Convention.
Although the Convention only applies directly to disputes between individuals and public authorities, the obligations it imposes on the State does colour the outcome of disputes between private parties. This is because “courts” are included in the definition of public authorities. Since it is unlawful under the Act for such public authorities to act in a way which is incompatible with the rights under the Convention, courts are under increasing pressure to interpret the common law in accordance with the Convention even in the determination of private disputes.
In addition, courts are bound by s.3 of the Act to construe primary and subordinate legislation in a way which is compatible with Convention rights. Even though the common law is not specified in this section, a judge adjudicating a dispute between private parties is often urged to interpret a rule of common law in accordance with Convention rights. The limitation of liability under the Act to “public authorities” does, however, mean that private parties are generally not able to take proceedings against each other on Convention grounds alone.
The inclusion of courts in the definition of public authority means that individuals are sometimes able to rely on Convention grounds in judicial review proceedings against the lower courts, such as magistrates’ courts and the immigration appeals tribunal. The decisions of the higher courts which cannot be judicially reviewed may be appealed on Convention grounds. However, it should be borne in mind that s.9 of the Human Rights Act 1998 provides that Convention challenges may not be brought in defiance of any rule of law which prevents a judicial decision being the object of judicial review.
A court or tribunal deciding a question in respect of a Convention right must take account of “relevant judgments, decisions, declarations and opinions made or given by the … European Court of Human Rights and the Committee of Ministers of the Council of Europe” (Section 2(1) of the Human Rights Act). This means that Strasbourg jurisprudence will be influential, although not binding, on national courts.
The anomolous situation is that although the rulings of the Court do not bind our own judiciary they create international law obligations for the government. As Adam Wagner has pointed out, by virtue of article 46 of the European Convention on Human Rights, the government must “abide by”, that is, it must follow, final decisions of the European Court of Human Rights.
The situation becomes more bizarre still, as the UK supreme court (along with all other courts) need only “take into account” judgments of the Strasbourg court. So the supreme court, which is subordinate to parliament in every other way, can do what parliament by its own choice cannot: namely, ignore decisions of the European Court of Human Rights. So the Strasbourg Court’s rulings on the legitimacy of any particular infringement will have an impact on the way domestic courts will approach the question. Strasbourg judgements provide non-binding guidance on the tests of necessity and proportionality, which means that any given limitation should achieve its aim without excessive impact on the rights of the individual.
Rapid expansion of human rights obligations at the European and international levels arguably undermines the system of International Human Rights Law. Countries like the UK, which place strong emphasis on the need to protect individuals from abuses, are faced with ever more obligations stemming from rights inflation. One crucial way in which this occurs is through rights replication.
No-one can legitimately argue that women, children, persons with disabilities, migrant workers, human rights defenders and other vulnerable groups do not need protecting from human rights abuses. Where those groups require additional rights then of course it makes sense for them to be enshrined within treaties. Yet the many treaties, resolutions and declarations about those groups almost always focus on rights that already exist for all individuals. Often these are civil and political rights, which can be found within international and regional treaties. Replicating these rights, rather than creating new additional ones, weakens and undermines the human rights system.
J.D. Heydon: Are Bills of Rights necessary in common law systems? – read lecture
Former Australian High Court Justice Heydon’s thought-provoking speech questioning the efficacy and indeed the very merits of the Human Rights Act deserves reading in full, but the following summary highlights its main features and should encourage readers to immerse themselves in the lecture.
Proponents of human rights instruments urge their necessity on society because they gesture toward a morality more capacious than the morality of our tribe, or association, or nationality. The forum of human rights is one in which our allegiances are not to persons or to wished-for outcomes but to abstract norms that are indifferent to those outcomes. That is why the Human Rights Act has around it what Heydon calls an “aura of virtue” that would make its repeal extremely difficult from a political point of view, even though it is legally and practically possible. Continue reading →
The United Nations Convention on the Rights of the Child (‘the UNCRC’) celebrated its 30th anniversary on 20 November 2019. On the same day, the Scottish Government announced its plans to incorporate the UNCRC into Scots law. This means that the treaty will form part of domestic law in Scotland and its provisions will be enforceable by the courts. This is the result of many years of campaigning by children’s rights groups and civil society organisations.
What is the UNCRC?
The UNCRC is the most widely ratified international human rights treaty in history. In total, 196 countries have ratified it, with the USA being the only country in the world that is yet to do so.
It is the most comprehensive statement of children’s rights that exists, covering all aspects of a child’s life. It includes civil and political rights to economic, social and cultural rights, and even includes rights such as the right to play. Four general principles guide the implementation of the treaty: freedom from discrimination (Article 2); the best interests of the child (Article 3); the right to life, survival and development (Article 6); and the right to be heard (Article 12).
Tonight, in the Old Hall, Lincoln’s Inn, Judge Robert Spano will deliver the inaugural Bonavero Institute Human Rights Lecture entitled “The Democratic Virtues of Human Rights Law” in which he responds to Lord Sumption’s Reith Lectures on the BBC last year. Jonathon Sumption will be there himself to respond to Robert Spano’s observations. The event, which is moderated by Helen Mountfield QC, principal of Mansfield College, Oxford, will be recorded and filmed, and the director of the Bonavero Institute Catherine O’Regan (whom I interviewed in Episode 97 on Law Pod UK has kindly given permission for the audio recording to be republished on Law Pod UK in due course.
So, here is Robert Spano in his own words.
At the outset let me say this, I bring an external perspective, I will not be commenting on domestic political issues or developments in the British legal system. For that I am not equipped. Rather, I will begin by focussing in general on Lord Sumption’s views on the expanding role of law at the expense of politics before engaging with his third lecture, entitled ‘Human Rights and Wrongs’, and his criticism of the European Court of Human Rights. I proceed in this manner as it is difficult to disentangle the third lecture from Lord Sumption’s overall thesis. The five lectures must in other words fairly be read as a whole. When referring to his lectures, I will use the language Lord Sumption deploys in his published volume entitled Trials of the State – Law and the Decline of Politics (Profile Books, London (2019). In my intervention, I offer my personal views which should not be ascribed to the Court on which I serve.
This is a short version of an article on the subject to be published by John Edwards, Professor Emeritus of Human Rights at London University
There have been three major conferences over the past two years (at Interlaken, Izmir, and Brighton) to discuss the functioning of the European Court of Human Rights and possibilities for its development and reform. Each provided an opportunity to scrutinise such important components of the Court’s work as the subsidiarity principle, the (quite separate) principle of the margin of appreciation, the prioritisation of Convention articles, admissibility criteria, the idea of “European consensus”, “just satisfaction”, and “significant disadvantage” as well as broader topics such as the future role of the Court and whether a court of individual petition with case law as its only corpus of wisdom is the best way of promoting and protecting human rights in Europe. On each occasion debate was hijacked by the singular topic of reducing the backlog of cases. Wherever one of these components had a bearing on the Court’s overload, discussion was virtually confined to how it could be amended to cut the backlog and bring applications and judgements into balance. Continue reading →
I gave the keynote speech at yesterday’s 8th Annual Withington Girls’ School’s Model United Nations Conference. It was an honour to be asked, especially as it was only a few hundred meters from where I went to school, and also inspiring to see hundreds of young people giving up their Sunday to debate important human rights issues.
In case you are interested, I have reposted the text of my speech below and as a PDF here. It’s a long-read, but in it I work through why I came to human rights as a career choice and why I think they are important.
Last week Donald Tusk, President of the European Council, tabled a set of proposals which the government hopes will form the basis of the UK’s renegotiated relationship with the EU, in advance of an in-out referendum. Politically, the proposals may be just the job: a new commitment to enhance competitiveness, proposals to limit benefits to migrants, recognition that member states’ different aspirations for further integration must be respected, and creation of a (“red card”) mechanism to block EU legislation. Legally, however, they raise more questions than they answer.
My thesis is this: the reach of the Court of Justice of the European Union (CJEU) in Luxembourg has extended to a point where the status quo is untenable. Aside from eroding national sovereignty, which it does, the current situation also undermines legal certainty, which in turn undermines good governance.
Those who want change should have to make the case for it, Baroness Helena Kennedy QC challenged her fellow panellists, at a recent event jointly organised by the Bingham Centre for the Rule of Law and British Institute of International and Comparative Law, and hosted by Bindmans. The panel was one of the most stimulating contributions of the year to the debate over the proposed repeal of the Human Rights Act and its replacement with a British Bill of Rights, featuring contributions from three members of the 2012 Commission on a Bill of Rights, a number of comparative perspectives including one from Australia, and even a call for what appears to be a written constitution.
Professor Jeffrey Jowell gave some preliminary remarks to set the scene for the panel discussion. He noted that the Bingham Centre had not adopted any particular position on the proposed repeal of the Human Rights Act (HRA) and its subsequent replacement with a British Bill of Rights, since the Conservative Government had not yet published its proposals. He then quoted a recent report that the Government was planning to publish its consultation paper within the next two months, and then seek to legislate rapidly to get the British Bill of Rights on to the statute books by the end of next summer. Given this, he felt that the time was therefore right to hear a spectrum of views on the subject to assist the Bingham Centre in forming its position. Continue reading →
The atrocities that took place in Europe during the Second World War were a major catalyst for moving away from this state-centred view of international relations. As Johannes Morsink notes in his meticulous historyof the drafting of the UDHR, the Holocaust was the single most important event that shaped its writing.
The UDHR recognises that ‘all human beings are born free and equal in dignity and rights’ regardless of their race, sex, national origin or other status. But did it go far enough? After all, the vast majority of the earth’s inhabitants are nonhuman. Just as individual humans are particularly vulnerable to the excesses of state and other forms of concentrated power, so too are animals particularly vulnerable to abuse at the hands of humans.
The tyrannical exercise of human power over the other animals is ubiquitous, whether it’s subjecting them to painful biomedical experiments, destroying their natural habitats, forcing them to perform in circuses and aquariums, or industrially rearing and exterminating them for food. Are we systematically violating the rights of animals when we treat them like this? Ought we take steps to rectify this with a Universal Declaration of Animal Rights?
There is plenty of nonsense out there about the Human Rights Act. For example Emma McClarkin – a member of the European Parliament no less – said on BBC’s Politics Show (at 5:15) that we are “hamstrung by the European Charter of Human Rights”; a charter which does not exist.
There will more of this before the Conservative party conference is over, so let’s go back to basics with a few questions and answers about the Human Rights Act.
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