Human Rights Act rethink

The 2 March issue of the Gazette read like a festschrift for the Human Rights Act. Three articles from heavyweight sources lauded the act and its effects. Criticism came there none.

Yet (as was acknowledged in Joshua Rozenberg’s Gazette article ‘Rights plight’) there is unequivocal commitment from the Conservative Party to repeal the Human Rights Act and its replacement by a UK Bill of Rights or a British Bill of Rights and Responsibilities. Moreover, there is popular disquiet about the act’s operation, particularly in relation to deportation, prisoners and extremists. These concerns need to be faced.

Dinah Rose paper

In a paper published by Politeia, Dinah Rose QC asks: ‘What’s the point of the Human Rights Act?’ That is a good question. She answers it by claiming: ‘…the Human Rights Act provides a mechanism which, at least to a degree, operates as a check or balance, protecting fundamental rights against the effects of untrammelled parliamentary sovereignty’.

Her conclusion is as follows: ‘A Conservative government ought first of all to be in the business of conserving what is valuable in our traditions. Our fundamental rights and freedoms, and the operation of the legal system which protects them, are foremost among these. But if the government does not understand or respect those rights or that system, the risks of doing irreparable damage are high.’

These are ringing words. But it is at least open to debate whether such an apocalyptic vision is justified; and whether the Human Rights Act is a necessary part of the protection of fundamental rights and freedoms.

Curbing excesses

Whether Magna Carta can in fact bear all the attributes it is now often given is doubtful.

However, this country did give birth to a parliamentary system, trial by jury, the common law, judicial review and so on. These are not small achievements. Many of them have been adopted elsewhere. As Dinah Rose points out, it is quite possible that in the absence of the Human Rights Act the English courts would themselves have curbed the excesses of executive action.

Lord Atkin did not need the Human Rights Act to justify his brave dissent in Liversidge v Anderson (1942), in which he famously said: ‘In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war and in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any encroachment on his liberty by the executive, alert to see that any coercive action is justified in law.’

Moreover, in cases where judges have used the Human Rights Act as the basis for their decision, such as Ghaidan v Godin-Mendoza, it is at least arguable that they would have reached the same decision without it.

That case hinged on the meaning of the term ‘surviving spouse’, which was extended in the Rent Act 1977 to include ‘a person who was living with the original tenant as his or her wife or husband’. Could the non-tenant survivor of a homosexual couple qualify under that provision? The House of Lords concluded that he could. The House applied section 3 of the Human Rights Act (interpretation of legislation) to the 1977 act, with Lord Steyn saying that in the light of section 3, the earlier act could then be taken to mean ‘a person who was living with the original tenant as if they were his wife or husband’.

In a powerful dissenting judgment, Lord Millett based his reasoning on what he saw as the clear meaning of the 1998 act. ‘In my view’, he said ‘section 3 does not entitle the court to supply words which are inconsistent with a fundamental feature of the legislative scheme, nor to repeal, delete, or contradict the language of the offending statute.’

Even so, since the case was essentially about the meaning of words in a changing society, the majority could equally have found for the survivor on the basis of the words in the 1977 statute alone.

Magna Carta

The Law Society is somewhat carried away by Magna Carta, pointing out that the Human Rights Act along with the UN Declaration of Human Rights are in our jurisdiction its closest descendants. It believes that plans to replace the act could result in a diminution of the universal protection that the act ensures, and potentially be an attack upon the principles of Magna Carta itself.

Most people would think this at least a tad exaggerated. After all, we seemed to cope for centuries without the Human Rights Act.

The president of the Law Society asks two questions in his article of 2 March ‘Setting the right example’.

The first is: would repeal of the act undermine our authority to speak up against abuses elsewhere? This is a slightly edited version of the question Mr Caplen asks, but nonetheless captures his query. The answer is: not necessarily. Abuses are abuses. Either there is a case against them or there is not. If there is, speak up.

The second question he poses is: would repeal of the act allow other countries to justify their conduct by pointing to our own less clear example? No. To attempt to justify unacceptable conduct by pointing to a ‘less clear’ example would only serve to emphasise how unacceptable was the conduct itself. We will never be able to stop accusations and counter-arguments, however absurd. See, for example, the recent comments by the organisation Cage on the treatment by the security services of Mohammed Emwazi, otherwise known as ‘Jihadi John’. All we can do is respond with reason and logic – preferably calmly.

Principal beneficiaries

It cannot be said that the courts have been eager to use the act and base their judgments on it. Quite the contrary. The courts have been willing to listen to Human Rights Act arguments but reluctant to apply them.

Take for instance Southend-on-Sea Borough Council v Armour. The case concerned an introductory tenancy under the Housing Act 1996. The act lays down a process under which the landlord can obtain an order for possession against the tenant, as is the case for secure tenancies under the Housing Act 1985. On the face of it, these acts set out discrete codes enabling public landlords to regain possession in clearly defined circumstances. Yet the courts have consistently held that a defence under article 8 of the European Convention is entirely possible. Article 8 sets out a right of respect for family life and the home.

The basis of an article 8 defence is lack of proportionality, a phrase that does not appear in the article but which is apt to describe article 8.2: ‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

The threshold for establishing an arguable article 8 case is a high one and will be met only in a small percentage of claims. Local authorities will be assumed to be acting in accordance with their duties, and an article 8 defence must be pleaded and sufficiently particularised to show that it reaches the high threshold required.

Moreover, the defence will rarely operate to give the tenant an unlimited and unconditional right to remain. In Armour, the article 8 defence did succeed since (among other things) the tenant was vulnerable as a person with mental illness and disability. Much more typical is Manchester City Council v Pinnock, where the history of behaviour on the part of those living at the property was ‘extraordinary in its extent and persistence’.

The Supreme Court heard long arguments on the tenant’s claim under article 8, but still confirmed the order for possession. The court took the same approach in London Borough of Hounslow v Powell. Throughout, the Supreme Court has emphasised that article 8 defences will rarely succeed.

Accordingly, the decision to apply the act in Armour was rare, especially in the property context. Yet if the courts are willing to listen to Human Rights Act arguments that hardly ever win, the suspicion exists that the main beneficiaries of the act are the lawyers in those cases – to the detriment of other litigants, would-be litigants, their lawyers, and court officials of all kinds who would otherwise want to be more productively employed. To test this notion would cost so much in time, personnel and money that it will not be undertaken. It is more likely that a political decision will be taken in the interest of garnering votes.

In passing, it is worth noting that all litigation procedures are under attack – ‘an expensive, slow, inefficient, heavy-handed system’, according to Andrew Ritchie QC. One court bundle in a custody dispute ran to almost 600 pages. Skeleton arguments are often far from skeletal. Disclosure of documents is burdensome, particularly in the digital age. Small wonder then that the human rights industry (of which some lawyers are part) should itself be scrutinised.

Effect of repeal

Outright repeal of the Human Rights Act, whether or not accompanied by withdrawal from the European Convention, might well give a strong impression that the UK does not care about human rights. That would be a false impression. The evidence of centuries indicates that this country most certainly does care about human rights. It invented the prerogative writs and orders, habeas corpus among them. The difficulty is to decide what should replace the act.

As Joshua Rozenberg indicated in ‘Rights plight’, if that task was easy it would have been done by now. One thing is clear: any replacement must match the Human Rights Act in its drafting, which by any standard is masterly. See the way that its provisions reinforce themselves by setting out that:

• Legislation must be read in a way which is compatible with the Convention rights (section 3);
• Public authorities may not act in a way which is incompatible with a convention right (section 6(1)); and
• The courts are themselves public authorities (section 6(3)).

Wittgenstein famously said that everything that can be thought of at all can be thought clearly; and everything that can be put into words can be put clearly. So once the policy behind a new act has been clearly articulated, the skill of the parliamentary drafter can express it. The problem may well be that the replacement policy is not at all easy to articulate.

Political decision

Ultimately, replacement of the Human Rights Act by a UK Bill of Rights or something similar will be a political decision supported by a majority in the House of Commons.

The courts themselves have been nudged into the political arena, first by the Human Rights Act itself and second by taking our highest court out of the House of Lords. Almost by stealth we seem to have been pushed towards an open separation of powers on the American model. Enactment of the Human Rights Act was itself a bold political step. An equally bold political step will be needed to replace it.

First, it will have to be decided whether Britain should be a sovereign state, and what the characteristics of a sovereign state are. One of those characteristics should surely be that the system of justice is self-contained. If small countries such as New Zealand and Singapore can manage that, so can we.

Second, there should be acknowledgement of a social contract: with rights there are associated responsibilities. Emphasis on rights alone gives a false position and the ensuing culture of entitlement harms society.

Third, it should seek to restore the sovereignty of parliament. As Dinah Rose pointed out in ‘What’s the point of the Human Rights Act?’ parliamentary sovereignty cannot be absolute and perhaps it should not be. But the principle needs to be rethought even if that is associated with a reappraisal of our relationship with the EU.

Finally, as far as possible, the replacement act should enunciate specific concepts rather than general ones. Generalities and broad principles only encourage uncertainty, argument and litigation.

Conclusion

Our legal system is widely admired and has been successfully exported to various parts of the world. Our judges (at the higher levels, anyway) are top class: experienced, able, incorruptible and independent. Many countries envy that. The rights in the European Convention are worthy, but expressed in terms that are too general. To some extent that is their problem: no one could reasonably disagree with them.

The time has come for a rethink. That will be difficult, but surely it is worth a try.

Richard Castle is a solicitor based in Cambridge