The Equality and Human Rights Commission (EHRC) has just published the 200-page report of its Human Rights Inquiry. Meanwhile, rather more economically, Public Interest Lawyers (PIL) has put out its study – British forces in Iraq: the emerging picture of human rights violations and the role of the judicial review. There are some lessons for the commission in the PIL study.

The commission’s report is indubitably worthy. The terms of reference of its inquiry were:The report looks at how the delivery of public services has been, and could be, improved through use of the Human Rights Act. The essential argument is about moving on from a comment by Andrew Dismore MP, himself a solicitor, that ‘human rights has become a prisoner of the lawyers’.

  • to assess progress towards the effectiveness and enjoyment of a culture of respect for human rights in Great Britain; and
  • to consider how the current human rights framework might be best developed and used, to realise the vision of a society built on fairness and respect, confident in all of its diversity.

The inquiry team noted green shoots of recovery. It quoted the National Policing Improvement Agency as recognising that human rights ‘are a key part of effectiveness in policing’, and a director of social services that the Human Rights Act ‘has provided a much stronger foundation for both promoting equality and tackling inequality’.

The PIL publication is altogether more hard-edged. The report argues that the British army is still using interrogation techniques banned as cruel and degrading treatment by the European Court of Human Rights in 1972 and which Ted Heath, thereafter, ordered the security and armed services to reject. The sources for the PIL accusation are 10 judicial review cases. Its conclusions reveal an ambitious and unabashed political agenda: ‘The [anticipated] success of these cases should signal a sea change in the government’s approach to military training and planning, military invasion and occupation, interrogation of combatants and civilians and treatment of civilians, internees and prisoners of war.’

The commission’s team knew very well that human rights can have a hard edge. After all, its chair was Dame Nuala O’Loan, a solicitor whose career is somewhat close to that of PIL’s Phil Shiner. As the Northern Ireland Police Ombudsman, she played a heroic role in exposing collusion in the death of another solicitor, Rosemary Nelson, and in unravelling the Omagh bombing. Shiner, Law Society solicitor of the year in 2007, is the man who successfully pursued the case of Baha Mousa, establishing the principle that a person in the custody of British troops is protected by the Human Rights Act, even when outside the UK.

Both Dame Nuala and Shiner have encountered a vicious degree of media and political hostility. Sir Ronnie Flanagan, then chief constable of the Police Service of Northern Ireland, argued that Dame Nuala’s Omagh report suffered from ‘significant factual inaccuracies, misunderstandings, material omissions and unwarranted assumptions’. For his part, Shiner has braved attacks by tabloid newspapers to the effect that ‘this man is the greatest threat to our troops and national security since Lord Haw Haw’.

Thus, the EHRC knew what it was doing. In the face of attacks on the Human Rights Act, it wanted to accentuate the positives of the human rights contribution to improving public services. Trevor Phillips, the commission’s chair, specifically attacks in his foreword the ‘mistake’ that ‘human rights only really matter to people from far off and foreign lands’ and our failure ‘to think of human rights outside of laws, lawyers and legislation’.

However, these two reports and the experience of their respective main authors show the true complexity of human rights. Some rights are best enforced through sensitive public services. However, the work of Dame Nuala in Northern Ireland and Shiner is at the far end of the spectrum of enforcement: they have questioned the operation of the British military and the Northern Irish police in ‘peacekeeping missions’. Frankly, in that situation, you need all the law, lawyers and legislation that you can get.

The chief legal mechanism for challenging violent death at the hands of agents of the state comes from articles 1 (obliges the state to strive to make rights effective) and 2 (the right to life) of the European Convention on Human Rights. A violent death, particularly of someone in the custody of, or at the hands of, agents of the state requires ‘an independent and impartial official investigation’. This is the minimum means by which the state is accountable. Dame Nuala and Shiner between them have shown the power of this simple right of inquiry. It shines a light on the kind of murky security and military practices that can thrive only in the dark. In the long term, the police in Northern Ireland and the military overseas will be the better for it, painful though the short-term consequences may be.

The power in the concept of human rights derives largely from the unity that it gives to different civil liberties. Human rights can help to improve public services: they can be a shield against inhumanity and complacency. But, allied with the force of independent review by judge or ombudsman, human rights can also be a sword. We need both. The commission, and any other effective apologist for human rights, must recognise that.

Roger Smith is director of the law reform and human rights organisation Justice