Written evidence from Bright Blue (HRA0032)

Bright Blue is an independent think tank for liberal conservatism. We seek to defend and champion liberal, open, democratic and meritocratic values, policies and institutions.

One of our core research themes is human rights and discrimination. Over the past few years, we have published several reports and hosted several events on this research theme, with the aim of influencing both government policy and public discourse. We have had some success: for example, the Government recently adopted our idea for the appointment of a new Special Envoy for the Freedom of Religion or Belief.

Last year, we published Fighting for freedom? The historic and future relationship between conservatism and human rights. This report outlined and assessed different options for reform, concluding that Conservatives should be supporters of the Human Rights Act (HRA) and European Convention on Human Rights (ECHR). This report was written by Sir Michael Tugendhat, a former Judge of the High Court of England and Wales, as well as currently being a Bencher of the Inner Temple, a member of the Executive Board of Justice, and Emeritus Professor of Law at the University of Leicester.

Sir Michael Tugendhat is the author of this submission. Ryan Shorthouse, the Director of Bright Blue, is the editor of this submission.

Has the HRA succeeded in its aims as they were set out in 1997/8?

1. The aims of the HRA have been achieved to a large extent.

2. In 1950, the UK adopted the ECHR for foreign policy reasons. But, in 1998, the HRA was introduced to address result of criticisms of UK law, and the judges. Although by the 1980s judges were becoming more activist in the development of the common law, to protect fundamental rights, in 1997 it was still felt that people were being deprived of their liberty and property without due process of law, and that the judges were failing in their role of protectors of the weak against the strong. From about 1970, the criticisms had focussed on the fact that Governments controlling parliament could impose their policies without any restraint. In Lord Halisham’s words, the supremacy of parliament had become “elective dictatorship’”.

3. In 1974, Sir Leslie Scarman noted the strengths of the common law system: it is created by judges independently from governments or parliaments; judges and lawyers are highly professional; and the common law is sufficiently constant to satisfy the need for certainty, while preserving some degree of flexibility to adapt to changing circumstances. But he also noted its weaknesses: it is not easily accessible nor easy to understand when found; it is resistant to change; it prioritises certainty over any flexibility it does preserve; and it is helpless in the face of the legislative sovereignty of parliament. It also failed to provide a mechanism for complaints that the UK was in breach of the ECHR, which had therefore to be taken to the European Court of Human Rights (ECtHR).[1] Sir Leslie Scarman’s concern was that the judges remained insufficiently ‘activist’, that is, were too timid and inclined to support the Government: “Law is in constant need of review: it becomes obsolete if it is not renewed.” [2] The aim of the HRA in encouraging the state to observe basic human rights (including by making it easier and cheaper for litigants to invoke human rights against the government) addresses the point that the common law was powerless before the ‘elective dictatorship’ of governments in control of parliaments with large majorities.[3]

4. Some of the aims of the HRA are encapsulated in the 1997 Home Office report, Rights Brought Home:

“The Convention is often described as a ‘living instrument’ because it is interpreted by the European Court in the light of present-day conditions and therefore reflects changing social attitudes and the changes in the circumstances of society. In future our judges will be able to contribute to this dynamic and evolving interpretation of the Convention. In particular, our courts will be required to balance the protection of individuals’ fundamental rights against the demands of the general interest of the community, particularly in relation to Articles 8-11 where a State may restrict the protected right to the extent that this is “necessary in a democratic society””.[4]

5. Fifteen years after the HRA came into force, Robert Badinter, former Minister of Justice and President of the French Constitutional Court, paid tribute to the influence of British jurisprudence on the ECtHR. At a colloquium held on 30 November 2015 at the Conseil d’État in Paris, he said (author’s translation):

“In the texts upon which European justice is based … there are two essential sources: written law and the common law … I cannot hide the fact that a British withdrawal from the European Court of Human Rights would be the most severe blow that could be struck against European justice … I say clearly: European justice without British participation, or even with our British friends dragging their feet and doing everything they can to delay progress, would be a terrible, a really terrible, blow delivered by the descendants of those who taught us to respect Magna Carta… But this declaration that I make, no great European justice without the active participation of the British, is the the statement of a conviction deeply held by all European lawyers who love freedom’.[5]

6. Para 2.5 of the 1997 Home Office report, Rights Brought Home, refers specifically to Articles 8-11 of the ECHR (right to respect for private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and religion). These areas of the law are governed partly by the common law, and partly by statutes such as the Public Order Acts and the Defamation Acts. In the 1990s, there was public concern that the common law which gives effect to these rights (including libel, confidentiality, and the law relating to surveillance and the misuse of private information) had not kept pace with technological change and society’s sense of justice.

7. In previous centuries, most of the decisions of judges extended freedom on the principle that ‘the law favours liberty’, and on the principle of legality (the presumption that parliament does not intend a statute to derogate from human rights, unless the words of the statute are clear). In the twentieth century, judges had become more cautious about developing the common law, suggesting instead that the law should keep up to date by statute. Two notable examples were the decisions by English courts. The criticism by The Sunday Times of a party to civil proceedings (the makers of the toxic drug Thalidomide) was held to be a contempt of court. The interception by the police of the telephone communications without there being any judicial oversight was held to be lawful. The prompt condemnation of the UK by the ECtHR precipitated enactments to overturn the common law: the Contempt of Court Act 1981 and the Interception of Communications Act 1985.[6]

8. Since the enactment of the HRA, the courts, as public authorities under HRA s.6, have actively developed the common law, referring specifically to the ECHR rights. This demonstrates the effectiveness of the HRA in securing individual rights in the specific context of the UK. Examples in freedom of expression include: preventing local authorities from suing for libel; giving a public interest defence to claims for libel, which is of particular importance to journalists; and by putting a cap on the damages that can be awarded for libel.[7] In a series of cases, and under sustained hostile criticism from the press, judges also developed the law of privacy.[8] Although these developments were consistent with principles recognised by the common law for centuries, they would have been unlikely to occur but for the HRA.

9. The extent to which the HRA has succeeded in facilitating the development of British law, both statute law and common law, to reflect present day conditions, changing social attitudes and the changes in the circumstances of society, is in part demonstrated by the answer to Question 2, below.

Have any of the concerns about the HRA been realised?

10. The main concern of those opposing the HRA, and previous Bills to a similar effect, had been that the judiciary would become politicised, leading to appointments being made based on the political views of candidates, as in the USA. After about a century during which judges made few politically controversial decisions (save for decisions adverse to trades unions), by 1998 it had become increasingly common for judges to decide cases which were politically controversial. (The judges had commonly made controversial constitutional decisions from the sixteenth to the nineteenth centuries).[9] The concern about politicisation of appointments to the Bench receded with the establishment of the Judicial Appointments Commission. Other concerns came to the fore, some of which are considered here, and explored in even more detail in the Bright Blue report Fighting for freedom? The historic and future relationship between conservatism and human rights.:

• Foreign judges telling the UK what to do
• A higher body of law than UK law
• Mission creep and judicial activism
• Undermining UK courts
• Weakening effective political democracy and diminishing parliament
• Undermining British security

11. First, foreign judges telling the UK what to do: overall, the ECtHR has found against the UK less often than against other comparable member-states of the ECHR: France (708), Italy (1,781) and UK (305).[10] In recent years, the ECtHR has given very few judgments against the UK, and even fewer controversial ones. Most of the cases decided against the UK in the past attracted little controversy. Some were greatly welcomed, for example the decision against discrimination in the army on grounds of sexual orientation.[11] Other examples are in the fields of freedom of expression, surveillance and non-discrimination.

12. Second, on a higher body of law than UK law: the idea of a higher body of law enforced by a court can be found in the British tradition, albeit it was not in the constitution of the UK itself before the ECHR. It was the model adopted in 1789 by the British settlers, who formed the new United States of America, and it was what British Governments imposed upon Overseas Territories, including Hong Kong, in the period 1959 to 1997. It is also the model for the devolution statutes since 1998. These incorporate the ECHR, but do not recognise any supremacy in the devolved assemblies.

13. Third, on mission creep and judicial activism: judicial activism is not a fault. It is essential if judges are to fulfil their constitutional function of keeping the common law up to date. UK judges, as well as the ECtHR adopt the ‘living instrument’ doctrine: namely, interpreting the words of the ECHR in their contemporary sense, rather in the sense in which the original framers of 1950 might have intended. If British judges in past centuries had not been activist, we would not today have the common law protection of human rights which was the source for the ECHR.

14. This ‘living instrument’ principle has long been used by the Judicial Committee of the UK Privy Council in interpreting statutes of the British Overseas Territories: “[The framers of the Constitution of Barbados] would have been aware that sometimes the practical expression of these concepts — what limits on free speech are acceptable, what counts as a fair trial, what is a cruel punishment — had been different in the past and might again be different in the future.’[12] And it is the only possible principle to adopt in interpreting many precedents of the common law, since there is no single foundational document setting out the common law.

15. As demonstrated by the 1997 Home Office report Rights Brought Home, para 2.4, the fact that UK judges were perceived to be too cautious in adopting this ‘living instrument’ principle for most of the twentieth century was a factor leading to the enactment of the HRA.
16. Fourth, on undermining UK courts: UK courts have always gained strength from taking into account judgments of foreign courts. In the famous case of Sommersett v Steuart, a slave brought to London in an American ship was freed under habeas corpus in London in 1772. Lord Mansfield took into account the arguments used in a similar case in France in which a court had freed a slave.[13] British judges took into account the judgments of the ECtHR for at least twenty years before the HRA.

17. UK courts usually do follow ECtHR decisions, but the main reason why they do so is not the HRA. They may agree with ECtHR. But even if they do not agree, they mainly follow the ECtHR because it is desirable that a treaty should be interpreted to mean the same thing in each of the states-party. UK courts also, and increasingly, endeavour to keep UK law in line with all the other human rights treaties to which the UK has become party, such as the UN Convention against Torture. The ECtHR does likewise. These other treaties often include provisions which mirror, or are more rigorous than, the ECHR.

18. Fifth, on weakening effective political democracy and diminishing parliament: the rule of law is a pillar of the UK constitution. It is only reconcilable with the other pillar, the supremacy of parliament, if parliament and the electorate voluntarily exercise restraint in legislative activity, to the extent necessary to ensure the rule of law. This was the case before the HRA, but it is strengthened by the HRA s19 (ministers to make a formal statement to parliament that a Bill being presented is (or is not) compatible with the ECHR). It cannot weaken democracy, or diminish parliament, if, applying HRA s.3, the judges interpret as compatible with the ECHR a Bill which a Minister has certified as compatible. The fact that HRA s.3 is a statutory rule means that its application is even less likely to weaken democracy or diminish parliament than the common law principle of legality, according to which judges interpreted pre-HRA statutes on the presumption that parliament did not intend to interfere with fundamental rights.

19. Sixth, and finally, on undermining British security: the security of all persons is itself a human right which governments are bound to guarantee (both at common law and under ECHR Article 5). The rights to security, to a fair trial, including the presumption of innocence, and not to be tortured (ECHR Articles 5, 6 and 3), are amongst the human rights long guaranteed by the common law. Torture and unfair trials may increase the numbers of people who are convicted of crimes, but such convictions may not add to the security of the public. On the contrary, if the person convicted is in fact innocent, such a miscarriage of justice may create a grave danger to the public: and the more serious the crime in question, the greater the danger from a miscarriage of justice. It may mean that the real culprit will remain free to offend again, and that the police will not be looking for them. And fear of a miscarriage of justice may make juries in subsequent cases less willing to convict the guilty.

20. Moreover, the inability of the Home Secretary to deport foreigners suspected of being a danger to the public is, in many cases, not attributable to the HRA, but to treaties such as the Convention against Torture. Since 1950, the UK has become a party to numerous human rights treaties other than the ECHR, to all of which the courts may have regards.

About Bright Blue

Bright Blue is an independent think tank that champions liberal conservatism. Our work is guided by five research themes: social reform; immigration and integration; ageing society; green conservatism; and human rights. We were shortlisted for the 2016, 2017 and 2018 UK social policy think tank of the year and UK environment and energy think tank of the year in the prestigious Prospect Magazine annual awards.

1 October 2018