Rights, Responsibilities and the Repeal of the Human Rights Act
29 Sunday Nov 2009
The Human Rights Act 1998 (“the HRA”) has been at the centre of English public law for a decade. Its influence on private law has been less widespread but, particularly in the area of privacy, of fundamental importance. Over that period it formed a substantial proportion of the business of the Judicial Committee of the House of Lords. A recent comprehensive study by Sangeeta Shah and Thomas Poole suggests that between 2002 and 2007 human rights cases were between 28% and 41% of the total case load of the House of Lords. It seems likely to play a similar role in the Supreme Court. The proposed repeal of the HRA and its replacement by a “Bill of Rights and Responsibilities” is, therefore, something which is of considerable interest to readers of this Blog.
The importance in human rights cases of “responsibilities” in the sense of obligations to society is not controversial. It has often been said that the need for “fair balance” between the general interest of the community and the personal rights of the individual is “inherent in the whole of the Convention”. Another way of putting this is to say, in the words of Professor Blackburn “There are … responsibilities and obligations inherent in the concept of human rights … These public interest factors are the other side of the same coin that stipulates our fundamental human rights and freedoms”.
In his recent Denning lecture, the Master of the Rolls, Lord Neuberger addressed the question of “Rights and Responsibilities: Civic Duty and the Rule of Law”. He deals with “responsibilities” in two senses: the responsibilities towards the general interest which limits and defines the extent of rights and the responsibilities of the court in balancing these rights in individual cases. In relation to the former he points out that
“The law has long been engaged in the discussion of rights and the responsibilities which they carry with them, but, thanks to the introduction of the Human Rights Act 1998 in 2000, we in the UK have been particularly conscious of them in the past decade”.
He considers the history of the rights to fair trial, liberty and security and freedom of expression. In relation to the European Convention on Human Rights he says this:
“The Convention thus confers rights on individuals to which the state must pay proper regard when exercising its public functions – i.e. it acts as a sort of negative brake on the state. One the other hand it imposes obligations, responsibilities on the state and those exercising public functions positively to protect those rights (para 42).
Those responsibilities include those placed on the courts to carry out the “balancing exercise”:
One of the most fundamental and most difficult tasks of the courts is to balance these rights and responsibilities in individual cases. (para 44).
These issues of “rights and responsibilities” have been central to political debate about the Human Rights Act. In a speech on 25 October 2007, the Prime Minister, Gordon Brown, indicated that the Government was initiating a national consultation on the case for a new Bill of Rights and Duties and that:
“… this will include a discussion of how we can entrench and enhance our liberties – building upon existing rights and freedoms but not diluting them – but also make more explicit the responsibilities that implicitly accompany rights”.
This subject was considered by the Joint Committee on Human Rights in its report A Bill of Rights for the UK?” which suggested out that rights should not be found contingent on performing responsibilities (para 274). It found “the Government’s thinking about the relationship between rights and responsibilities extremely muddled (para 264). It went on to say that
“the Government is saying no more, than that rights are capable of being limited by competing interests. That is already provided for in the text of the ECHR and to the extent that it is not appreciated, it is surely a matter for education of the public rather than any attempt to amend the text or to redefine in the text of any new Bill of Rights” (para 273).
As a result, the Joint Committee was “strongly opposed” to any UK Bill of Rights being called either a Bill of Rights and Duties or a Bill of Rights and Responsibilities (para 274).
JUSTICE has also prepared a report on the same issue, “A British Bill of Rights: informing the debate”. The authors of this report were in no doubt about the relationship between rights and responsibilities:
“The relationship between rights and responsibilities needs to be understood. Most rights are qualified and, in practical terms, depend on the responsibility of everyone in society to respect one another’s freedoms (so that one party’s right to free expression, for example, does not impinge too far on another’s right to a private and family life). … These rights cannot be subjected to any all-encompassing limitation, such as that they are legally contingent on performance of set of duties and responsibilities. Their application regardless of such considerations is precisely the point of their existence”, (paras 38-39).
An useful and even-handed short account of the issues can be found in the House of Commons Library briefing note “Background to the Proposals for a British Bill of Rights and Duties”.
Despite the various critical reports, the Conservative Party has become firmly committed to the repeal of the Human Rights Act and its replacement with a “Bill of Rights and Responsibilities”. It it is established Conservative Party policy to
“Replace the Human Rights Act, which has undermined the Government’s ability to deal with crime and terrorism, with a British Bill of Rights.”
The background to this is a 2006 Pamphlet entitled “A British Bill of Rights and Obligations”, in which Jonathan Fisher QC on behalf of the Conservative Liberty Forum argued that a British Bill of Rights and Obligations was required “to restore the balance between individual rights and individual responsibilities”. He argued that such a bill would assist the Courts in balancing human rights in the public interest.
Some details of the thinking of the Conservative Party were given by the then Shadow Justice Secretary, Nick Herbert, in a November 2008 lecture entitled “Rights without responsibilities – a decade of the Human Rights Act”. He suggested a number of “key objectives” for such a Bill of Rights and Responsibilities.
“First, we want to make clear where the balance between competing rights lies in areas of law where nation states enjoy a margin of appreciation. We want a greater stress on responsibilities than the Human Rights Act or the European Convention – to which we would continue to remain a party – currently afford.
Second, we want a British Bill of Rights and Responsibilities to help us restore the place of Parliament and repair the separation of powers. … we aim for a settlement that restrains the influence of Strasbourg case law, and truly allows the development of a distinctive British jurisprudence on human rights.
Third, we want a British Bill of Rights and Responsibilities to bring greater clarity, to aid Parliament in drawing up laws and issuing guidance, preventing judge-made law …”
In a lecture given in May 2009 the current Shadow Justice Secretary, Dominic Grieve QC said of the Bill of Rights and Responsibilities project
“The intention behind the project is to try to achieve a statute that will both protect Convention rights, and in particular absolute rights under the Convention, rigorously while seeking by better definition clauses, where these are possible, in balancing competing rights and reducing rights inflation, which is more often caused by the interpretation of public authorities than by the courts”.
Liberty recently published a pamphlet by Conservative Parliamentary Candidate Jesse Norman and political columnist Peter Oborne entitled “Churchill’s Legacy: The Conservative case for the Human Rights Act”. This is an interesting contribution to the debate but does not appear to have persuaded the leaders of the Conservative Party to change course. When David Cameron gave “His 10 Key Pledges” to readers of the Sun – ironically on 2 October 2009, 9 years to the day after the HRA came into force – pledge number 3 was
“We will replace the Human Rights Act with a new British Bill of Rights to strengthen Britain’s traditional liberties”
Most recently, the repeal of the HRA and the new Bill were considered in an interesting speech by Michael Howard QC in the House of Commons on 18 November 2009 (summarised on the Blue Blog). Although he emphasised that he was not privy to the work that he had been done, his view was that the “essential, critical difference” between the proposed new Bill and the 1998 Act
“would be to remove from our courts the need to carry out the kind of balancing exercise between competing rights that has been thrust upon them by the 1998 Act”.
This is because
“One of the biggest threats to the democratic authority of Parliament and Government has come from the judges. … The Human Rights Act requires our courts to apply the European Convention on Human Rights in every decision they make. … Any decision about these rights requires a balancing of competing rights. The fundamental question is who should be responsible for striking that balance: elected MP’s or unelected judges?”
His conclusion was that
“David Cameron proposes to replace the Human Rights Act with a British Bill of Rights; I hope it will restore responsibility for this balancing act to politicians that the public can elect or boot out as they see fit”.
In other words, on Michael Howard’s account, the aim of the new Bill of Rights appears to be to draw “bright lines” so that the Courts are no longer responsible for “balancing” the rights of the individual against the general interest. Lord Neuberger’s analysis shows how misconceived this project is. The notion of balance is inherent in most of the rights which any bill would protect. The Convention (and all other human rights instruments) require the courts to engage in a case by case assessment of the proportionality of restrictions on rights. Parliament can lay down general guidance – but this must be applied to the facts of each case by the judges. Furthermore, the Conservative Party has made it clear that it does not want to renounce the Convention and withdraw from the Council of Europe. In a recent interview with Joshua Rozenberg, discussed in article in “Standpoint Magazine”, Dominic Grieve
“makes it perfectly clear that Britain will not pull out of the European Convention on Human Rights. We will not be able to send people to countries where they will be tortured, he promises. Whatever else happens, individuals alleging breaches of their human rights will still be able to take the British government to the European Court in Strasbourg”.
As a result, any “guidance” or “bright line rules” in relation to qualified rights would itself have to be compatible with the Convention. As Joshua Rozenberg comments
“judges would inevitably have the last word in individual cases. The real problem Grieve faces is rebalancing his long-standing commitment to human rights against the instincts of his political supporters”.
Overall, it is difficult to see what shape a Bill of Rights and Responsibilities would take. No draft bill has been published and no legal mechanism proposed for achieve in practical terms. In the article just mentioned, Joshua Rozenberg argues that it would take the best part of five years to bring new legislation into force.
“Grieve is aiming for a consultation paper within a year of taking office, followed a year later by a draft bill. With time for pre-legislative scrutiny, parliamentary procedures and retraining for the judges, it would be 2015 before the changes took effect”
The mechanism for the balancing of rights and responsibilities by Judges – and ultimately by Judges of the Supreme Court – put in place by the HRA is likely to remain in force for some time.
One final thought. In the study by Shah and Poole which we mentioned at the beginning of this piece they consider the “win rate” of human rights cases in the House of Lords and conclude that of 132 post-HRA cases involving human rights claims, only 35 were successful. Although there are other possible approaches to what constitutes a human rights case and what constitutes a “win”, the overall position is clear: the majority of human rights claims which came before the House of Lords were unsuccessful. In other words, when the highest court was called on to strike the balance between the rights of the individual and the general interest of the community in two thirds of cases it agreed with the public authority’s view as to where that the balance should be struck. It is perhaps difficult to see why it is legally (as opposed to politically) necessary to find the elusive and probably impossible, Convention compatible, “bright lines” at all.