Where are human rights, the rights bestowed upon human beings simply because they are human, to be found in the legal framework of the UK? Furthermore what do human rights laws even do? Having recently read Fake Law by the Secret Barrister, the term they use, “what have human rights ever done for us?”, a play on a classic Monty Python sketch, hit home and I feel is worth exploring further.
The UK has a long legal history of human rights. As early as 1215 Magna Carta established the rule of law. This means everyone is subjected to the law of the land, even the Monarchy. It also provided for fundamental rights including the right to a fair trial. The Bill of Rights 1689 further entrenched the rule of law within our constitution and provided for more civil liberties, protecting citizens from the tyranny of the Monarchy. Since, our human rights culture has continually grown and evolved in our common law and scattered constitution.
During World War Two it was Winston Churchill who first called for a Council of Europe and a European response to human rights. Following the war, the European Convention of Human Rights (ECHR) was put into motion, with the international treaty coming into force in 1953. Each state which has ratified the treaty is obligated under international law to protect the liberties and freedoms enshrined within it. In the wake of the atrocities witnessed during the Second World War, the ECHR was an assertive and collaborative effort to ensure nothing of that nature would happen again.
Contrary to the rhetoric that the ECHR unduly imports foreign values and laws into our way of life, not only is it the brainchild of a British Prime Minister, but British lawyers had a heavy hand in drafting it. Of note is Conservative MP and lawyer David Maxwell-Fyfe. Maxwell-Fyfe was also deputy prosecutor in the famous Nuremberg Trials (which saw the upper echelons of the Nazi regime tried for their crimes of war) and had a hand in drafting the United Nation’s Universal Declaration of Human Rights. His work saw British legal and cultural history not only at the table during the drafting of the treaty, but also woven into the treaty itself. Consequently arguments that our sovereignty is being threatened by the values and beliefs of continental bureaucrats should quickly disintegrate.
Importantly, both the ECHR and the European Court of Human Rights (ECtHR), the court in Strasburg which presides over it, are part of the Council of Europe. This is an organisation separate from the EU and boasts 47 member states compared to the EU’s 27. While Brexit itself will not result in the UK withdrawing from the Treaty, the UK’s human rights law is nonetheless becoming increasingly vulnerable. Many in the Vote Leave camp have long been sceptical of the amount of European influence the ECHR and HRA import into our legal and political lives.
Until 2000 the ECHR was the main source of human rights law in the UK. In 1998, under New Labour, the Human Rights Act 1998 (HRA) was conceived, coming into force in October 2000. When before grieved citizens had to take their claims under the ECHR to Strasbourg, an expensive and timely process, the HRA transposed the contents of the ECHR into domestic law. The result: UK courts can now protect and uphold the rights guaranteed by the ECHR to UK citizens. This created strong and accessible means for individuals to protect their rights from abuse at the hand of the state and its subsidiaries.
As a result a significant step was taken towards improving access to justice with respect to human rights. In addition it enshrined an inherently British conception of rights into domestic law.
It should be noted that since the HRA came into force the number of ECtHR judgments against the UK has decreased dramatically from 6.8% in 2001 to 0.2% in 2017. While this will be due in part to more cases now being heard in domestic courts, there is nonetheless reason to believe this suggests the HRA has increased the compliance of public authorities and consequently bolstered human rights in the UK. Furthermore this subsequently holds that 99.8% of cases fall in favour of the UK which strongly undermines the contention that the ECtHR is waging a “war on British justice”. As such one may also question why for some the ECHR and ECtHR are enemies of the UK and its people.
While the government has made promises of ongoing commitment to the ECHR, their words have been hollowed by the political right’s long held eurosceptic suspicion of the HRA. As long ago as 2006, David Cameron pledged the Conservatives would repeal and replace the HRA with a “modern Bill of Rights”. Over the last decade and a half this has become known as a British Bill of Rights (BBoR), somewhat paradoxically given the aforementioned inherently British nature of the ECHR which the HRA imports.
This political plight follows the rhetoric which fuelled Brexit; the need to reinstate the supremacy of our laws and governance of our land and remove that of the EU. Section 3 of the HRA dictates that the courts must, insofar as is reasonably possible, interpret legislation passed by Parliament as compatible with the HRA (consequently also the ECHR and case law of the ECtHR). This to many encroaches on the principle of Parliamentary sovereignty and must be removed because it means Parliament should not pass laws that would be illegal under the ECHR. How can the UK be sovereign if our lawmakers must comply with transnational human rights legislation?
Not only does the HRA state the UK courts to “take into account” the rulings of the ECtHR, the UK Supreme Court further qualified this as meaning decisions of the ECtHR should be followed closely. Lord Rodger went further, pronouncing where “Strasbourg has spoken, the case is closed”. This requirement has become the focus of a drive to re-evaluate our human rights law; why should unelected European judges impose European standards on our rights through law? It is worth noting that no judges in the UK are elected either and that this seems to presume, in perhaps classic British style, that we should be in absolute control of what human rights are. Given these are human rights such a notion is laughable.
The Conservative Party officially committed to repeal and replace the HRA in their 2015 Manifesto. However in 2017 it was promised that “the HRA will not be repealed and replaced while the process of the UK’s exit from the European Union is underway”. Nevertheless in 2019 the Conservative Party Manifesto promised to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”. The balancing of rights and liberty against the need for more robust and untouchable state power is euphemistic for weakening the controls and checks imposed by the HRA on the conduct of government. The impact will likely see all the areas of life touched by the cases mentioned in this post stripped of protection and certainty. When efficiency is favoured over liberty suffering increases.
The government has nevertheless recently put their decade and a half commitment into action, announcing an independent review into the HRA, to be led by former Court of Appeal Judge Sir Peter Gross. The government's approach has evolved over the last fifteen years. Now not only does the government appear to be sceptical of European influence, but following the seismic defeats they faced over Brexit the government also seems to be unhappy with the role the domestic courts are playing with regards to legislative and executive oversight.
In particular the reviewing panel is mandated to consider the relationship between the ECtHR and domestic courts, including the requirement for domestic courts to take into account rulings of the ECtHR.
Perhaps even more alarmingly, as alluded to above, the panel will also consider “the impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy”. These are choice and candid words for the government’s desire to limit the legal exposure and accountability of their actions. To achieve this an independent review has also been launched into our judicial review process. See my post on this here for more on the subsequent impact on human rights. However this could result in a de facto degradation of human rights in the UK because the means and channels for enforcing and protecting our rights are set to be stripped and restricted.
I am less with the sovereignty of Parliament. After all it was Sir Leslie Stephen who said if Parliament “decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal”. In short this means all and any law passed by Parliament is ipso facto good law. As a result we are left at the mercy of our all powerful ruling party because of the simple majority governments our first past the post electoral system produces. The euphemism elective dictatorship carries weight. This simple summation, along with a global rise of populism, alt-right beliefs and conspiracies, post-truth politics, environmental crisis and now a global pandemic should be more than enough for one recognise the need for strong checks and balances on our system of governance.
We will now consider and understand the significant relevance human rights have in shaping and protecting our ways of life. This relevance can be found in the case law from domestic courts and the ECtHR which “has touched on every aspect of human life”. Consequently the cases below span both the jurisdiction of the ECtHR and the UK’s domestic courts.
Article 2: Right to Life
In Rabone v Pennine Care NHS Foundation a young woman’s parents brought a claim against her hospital after she committed suicide. Melanie Rabone had been admitted to hospital after attempting suicide and was deemed to be high risk. However the hospital let her return home and the very next day she took her own life. The court held that the hospital, being a public body, had a duty to protect Melanie’s right to life, even when it was threatened by herself. This clarified the duty owed to suicidal patients by those taking care of them. As a result those mentally unwell may trust more their care and treatment.
Article 3: Freedom from Torture and inhuman or degrading treatment
In DSD and NBV v Commissioner of Police of the Metropolis two of John Worboys’ victims, the infamous Black Cab Rapist challenged the police’s handling of their claims. The court ruled that by not investigating the victims’ claims the police had subjected the women to “inhuman and degrading treatment”. This will now apply to every rape claim submitted to police and consequently one would hope the case has made institutional improvements to the understanding and handling of rape cases. Importantly this means that, because the police are liable for their negligence, when a claim is mishandled the victim can receive damages from the police. Money can never fix such failures but it must be there for victims nonetheless.
In Z and others v United Kingdom a claim under Article 3 held that local authorities were liable under law when they failed to act on child abuse they have been made aware of and knew was happening. Importantly this develops the protection owed to children under the HRA, a group in society often unable to protect themselves, least of all against the state. It is for such groups that the HRA can offer a shield against abuse.
In Soering v United Kingdom the ECtHR held that the UK government had violated a German citizen's freedom from torture when he was extradited to the US. While extradited for murder charges, the claimant was headed for death row. This would mean waiting for years in prison without knowing whether he was going to be executed. By European standards such treatment is inhuman and degrading and thus never acceptable. For someone who finds the death penalty repulsive and archaic this provides an important distinction between European and US human rights culture.
Article 6: Right for a Fair Trial
Mental illness and subsequent detention has historically been plagued by unjust and degrading treatment which falls foul of today’s human rights standards. In RH v South London and Maudsley NHS Foundation Trust it was established that whenever someone is imprisoned by the state for reasons of mental illness, it is for the State to prove their continuing detention is necessary. This offers more protection to some of the most vulnerable and implicitly helps to dispel and address cultural and historical stigma towards mental illness. As with all detention, emphasis must be placed on rehabilitation rather than retribution for the enterprise to be conducive to protecting individuals and society.
Article 8: Respect for your private and family life, home and correspondence
In T and R v Commissioner of Police for the Metropolis the claimants found that by keeping their data on the police database, preventing them from getting jobs, the police had unduly limited two people’s Article 8 rights. Their data had been held since they were 11 and were caught shoplifting and stealing a bike.
In Campbell v MGN Ltd, Naomi Campbell brought a case against the Daily Mirror over the publication of pictures of her leaving drug rehabilitation; her participation in which was not public. The court ruled Campbell’s right to privacy outweighed the freedom of expression and public interest. This significantly attributed value and protection to human dignity over a public interest rhetoric being peddled by and private corporation.
Similarly in Peck v United Kingdom the court ruled that when a local council gave the media footage of a man’s suicide attempt they had violated his right to privacy. Even when things happen in a public place, they can still be private and afforded legal protection as being so. While this may seem to be simple common sense, as one of the world’s most surveyed peoples it is important to have the point defined in law.
Article 14: Freedom from discrimination in respect of these rights and freedoms
When the immigration officials presented barriers to Roma people seeking asylum, the court found their actions illegal under Article 14. The judgment in R v Immigration Officer at Prague Airport clarified that no barriers based on race can be placed for those seeking asylum. Lord Steyn held that because the immigration officials had “discriminated on the grounds of race. The motive for such discrimination is irrelevant.”. Such a fundamental principle can never be too entrenched in our legal system, and one may hope as a result...
In JD and A v UK the notorious Bedroom tax was ruled unlawful by the ECtHR. To have ones benefits reduced because of having a spare room in your council house discriminated against women at risk of domestic violence, whom it incentivised to leave their homes. Consequently we see again the ECHR standing by the vulnerable when those in power have not.
These cases are but a fraction of those which are significant, although I hope they still show how important human rights law is to the lives of everyone in the UK today. If you too believe our country is better off with our current human rights laws please take the time to join Amnesty International's petition to save the Human Rights Act here: https://savetheact.uk/#signup-form.