THE HUMAN RIGHTS ACT: DELIVERING RIGHTS & ENHANCING DIGNITY

 

In this post Jonathan Cooper, of Doughty Street Chambers, discusses the role of the Human Rights Act in enhancing respect for human dignity in the UK and argues that amending the Act risks to dilute the overall commitment of the UK to human rights.

Rights Work

Effective human rights are essential to restrain executive overreach. At their most rudimentary, human rights are there to hold power to account. That power principally emanates from the state but also extends to the failure of the state to hold non-state actors who deny rights to account. Human rights are concerned with the human cost of violations. They recognise the individual price that is paid when rights are broken or flouted, and they find a remedy for that breach, which need not always be financial. When human rights are ignored, people are abused.

Human rights also provide a template for democracy. Democratic societies work within the constraints of human rights. Without that framework to work within, democracies can turn in on themselves, ceasing to be democratic.

Human rights nurture peace. The pursuit and promotion of human rights enhance communities. Human rights compliant societies are more harmonious.

The UK System of Government Was Not Working

At the conclusion of the 20th century, it was clear that the UK system of government was not effective in the way that human rights were protected and promoted within the jurisdiction. Human rights could not be affirmed in any meaningful way. Decision makers, even when they violated human rights, were held to account in relation to minimum standards of responsibility. Decisions could only be challenged successfully if the decision was irrational. It was uncertain the extent to which human rights were to be considered. If they were, they were just one of multiple factors to be taken into account.

The common law provided hotchpotch protection. The rule of law worked efficiently in respect of issues such as legality, but the notion of the rule of law could not actually guarantee rights. Civil liberties were flimsy and stood no chance against the doctrine of Parliamentary Sovereignty. And it transpired that the majority of violations of the European Convention on Human Rights (ECHR) stemmed from primary or secondary legislation. The principal violator of human rights was not a decision maker, but the Westminster Parliament.

When measured against the ECHR, the UK system was found wanting. By the mid-90s, uniquely at the time across the Council of Europe, the UK had been found to violate all of the substantive ECHR rights except slavery, and a violation of that right was to follow.

The Human Rights Act (HRA) 1998 was a necessity. The UK was at a tipping point. The centralised state was no longer fit for purpose. Deference was dead. Decision-makers had to up their game. 21st-century Britain bore little resemblance to the country that had emerged in the decades immediately post war. It was expected that the state should be made more accountable. The failures of the state were well documented from the criminal justice system to the health service, education to housing. In the absence of effective accountability mechanisms, things were not changing. 

Proportionality and the Rights Transformation

The single biggest change ushered in by the HRA, was enhanced and structured systems of accountability when human rights are engaged. The HRA did this by making proportionality the tool by which decisions were measured. UK courts had consistently declined to introduce the test of proportionality. Would it have been judicial overreach to do so? That dilemma which dominated the High Court in the 1980s and 1990s was settled by the HRA. Proportionality was adopted via that Act. And the quality of decision making was transformed and boosted overnight. 

Human Rights Make Themselves at Home

The remarkable feature of the HRA was the degree of consensus there was for it amongst government circles, as well as cross-party support. The Bill’s passage through Parliament was a genuine endeavour in ensuring the HRA could be as effective as possible. There were minor hiccups, but at the third reading in the House of Lords, the Shadow Lord Chancellor wished the Bill well. 

There were passionate advocates for the HRA. The Tory Lord Alexander was no less in favour of it than Labour’s Lord Williams or the Lib Dems’ Baroness Williams. 

The HRA’s scheme was based on in-depth research and analysis by Francesca Klug, an academic (originally at King’s, London and then the LSE) who had her roots in the NGO sector. Her work was then personally informed by the Lord Chancellor, Lord Irvine and the Home Secretary, Jack Straw, and of course, Lord Lester, who had campaigned for the incorporation of the ECHR into UK law for decades. 

NGOs and civil society were actively involved in the process. In many respects the movement was led by NGOs. The Home Office and the then Lord Chancellor’s Department (now the Ministry of Justice) carefully thought through the implications. Most civil servants welcomed the development. Enhancing the lives of all within the jurisdiction is a motive for the majority who join the civil service. 

The HRA is universally acknowledged as a thing of legislative beauty. It was carefully crafted by Sir Edward Caldwell. He brought the scheme to life. And the way that the HRA fits within the UK system of government is truly accomplished. There was a seamless transition to enhanced accountability, as well as the recognition of rights.

The Scheme and Scope of Human Rights Protection

The HRA’s genius is the way that it shares responsibility for human rights protection across all branches of government. No aspect of government is let off the hook. Courts are required to give effect to human rights unless primary legislation is so clear it is not possible to do so without butchering the clear meaning of the statute. Under those circumstances, assuming the law is declared incompatible with human rights, the burden shifts back to the executive and legislature to remedy the inconsistency. In exceptional circumstances the executive can act alone to address the harm caused. 

All new Bills must be accredited as human rights compliant by the sponsoring Secretary of State, thus seeking to ensure that laws are not passed that violate the rights enshrined in the HRA. Parliament and its Joint Committee on Human Rights can engage with the Minister to ensure compliance. And, most important of all, everyone exercising a public function must give effect to, and respect, the rights contained in the HRA, unless statute law requires that they do not.

The HRA retains the basic building block of the UK’s constitutional framework, Parliamentary Sovereignty, and develops it. It puts human rights at the heart of that doctrine without unsettling the core principle that UK democracy requires: Parliament must be allowed to do as it pleases. There is nothing in the HRA that prevents Parliament from legislating to violate human rights. And if that violation is clear, the courts can do no more than declare the law incompatible with human rights.

The rights in the HRA are drawn from the ECHR. Those core basic rights necessary to meet human needs. They are limited in their scope, but they are essential. As leading judge, Lord Bingham once mused, which of these basic rights would you remove? Which of them can we live without? 

The HRA’s scheme creates a conscious dialogue with the European Court of Human Rights (ECtHR). Case law from that Court must be considered, but no more than that. And, after all, that makes sense. The ECtHR has extensive and daily experience of dealing with these rights under a myriad of circumstances. Their observations can therefore only add value to UK courts’ determination of the rights in the HRA. 

Similarly, the ECtHR gets the opportunity to learn from the approach of UK courts and how they analyse ECHR rights and the Strasbourg case law. At the same time, by referencing the case law of the ECtHR, that jurisprudence becomes part of the mainstream. Thus, encouraging the case law of international human rights courts and tribunals to be integrated within national legal systems. That case law should be celebrated as an opportunity and not a threat. The UK should relish this leadership role that they can play in domesticating the case law of the ECtHR.

Context, as with most aspects of law, is everything. UK judges can be trusted to understand the context of the legal issues before them.

And if we are to make an honest assessment of the cases decided under the HRA, which would we say were wrongly decided? 

Strasbourg Stays

Beyond the HRA, the UK continues to be bound in international law by multiple human rights obligations. The most notable of which continues to be the right of individual petition before the ECtHR. That Court retains jurisdiction of breaches of the ECHR in the UK. It therefore remains the final arbiter of rights for the UK.

That is as it should be for the international legal order, but since the incorporation of the ECHR into UK law through the HRA, successful cases against the UK before the ECtHR are now the exception.

And to tweak the question above, which Strasbourg cases against the UK would we say were wrongly decided?

Celebrating All That Has Been Achieved to Date 

The human rights framework enjoyed in the UK over the past 20 plus years has been carefully crafted. It was not a compromise. It was deliberately designed to ensure that the UK system of government was fit for purpose for the 21st century. As the 20th century drew to a close, the lack of effective rights protection was increasingly troubling the judiciary and the legal professions, but the other branches of government were also aware of their limits in delivering sound and effective administration.

Evidence of how much the HRA was needed is the speed with which it filled the vacuum from the moment it received Royal Assent. It became the golden thread linking all the different aspects of government together. From devolution to peace in Northern Ireland, the rejuvenation of policing to children’s rights, the HRA was the common theme. And the interesting thing about the HRA’s scheme is that it was neither radical nor revolutionary. It slotted rights that had been drafted fifty years earlier into the governing framework. The HRA is really that simple, which is why it needs neither reform nor renewal.

There are questions to be raised about the UK’s human rights framework, but they are not the ones currently being considered by the Independent Review. 

Dignity Matters

The central human rights question for the UK is does it adequately protect the right to human dignity? The answer to that quandary is that dignity is only just adequately recognised in law. The limited protection dignity is guaranteed in law in the UK comes from the ECHR via the HRA, which is why tinkering with the HRA should be avoided. An unexpected consequence might be that the nascent right to human dignity is stifled as a consequence.

Human dignity matters. It is a recognition of individual worth. Without an express right to human dignity, human rights law can remedy the consequences of violations of human rights but cannot always guarantee human dignity. Rights may be able to address violations that contribute to the encroachment on dignity but there are circumstances where human rights are insufficient to recognise the real harm caused, which is a denial of human dignity.

To over formalise the definition of human dignity, it prohibits instrumentalisation or objectification of human beings. What does this mean? People are not objects. Any dealings with people must recognise their inherent value. Dignity requires we always treat a person as an end in themselves, not as a means to an end. 

Dignity will be engaged and likely violated when persons are denied their identities as individuals and are only characterised by being lumped within a group. Individualism becomes merged into a mound: a group which is defined by others. That denial of the person means that those who are defined as part of that group can be derided and demeaned. 

Taken to its extreme, this denial of dignity leads to the horrors of genocide. The Jews, Bosnian Muslims and the Tutsi were all diminished as individuals. They were denied their equality, humanity and dignity. Their individualism was negated. They ceased to be persons and became defined by the group identity that they had been given to justify their persecution. Apartheid in South Africa is another example. Slavery is only possible when dignity is denied.

The UK witnesses the consequences of this denial of dignity for Black, Asian and minority ethnic people. The Windrush scandal is a textbook example of the consequences of sidestepping human dignity. Women have been similarly disregarded. The disabled become that. They cease to be people. Those who are poor can be similarly left without dignity.

The right to human dignity has been recognised as being particularly relevant to LGBT people. For millennia LGBT people have been tormented, criminalised and erased. The ability of LGBT people to form intimate, loving sexual relations has been ridiculed and rebuffed. The levels of violence LGBT people have been subjected to are unimaginable. LGBT people have lived the lives of outlaws, with no state protection. As recently as the 1950s a British Home Secretary had committed to “remove the scourge” of LGBT people from society. Such threats continue to be made by governments across the globe. It is not an over exaggeration to assert that if LGBT people could have been deliberately and systematically destroyed, they would have been. Except they keep being born.

The consequences of the stereotyping of LGBT people is a classic example of the denial of dignity. The human right to private life has helped, as has freedom of expression, as well as the prohibition on discrimination and increasingly the prohibition on inhuman treatment, but the right that encapsulates the harm done to LGBT people is the denial of dignity. 

In the absence of an enforceable right to human dignity, the treatment of LGBT people was justified because they were labelled unequal. And this inequality was reinforced by rules and law. And whilst the law recognised that inequality, and reinforced it, there was no reason to believe LGBT people were worthy of dignity.

Building Dignity into Rights

For just over a decade a right to human dignity was recognised in the UK through the EU Charter of Fundamental Rights. Its first article proclaimed, “Human dignity is inviolable. It must be respected and protected.” The Charter was not retained post Brexit and therefore at the end of the transition period, from 1 January 2021, the right to human dignity ceased to be part of UK law. Government’s attempts to justify why this did not matter were half-hearted. They offered a brief Analysis, aiming to “set out how the Government considers that fundamental rights that are currently protected by EU law will be protected after exit from the EU”, but this was a flimsy document. The Equality and Human Rights Commission sought legal advice which was clear. Losing the right to human dignity matters.

The ECHR does not contain a right to human dignity (nor a reference to it), but the right to human dignity has been read into the Convention. The first case to do so was against the UK. It involved birching as a form of punishment in the Isle of Man. For the state to demean an individual in this way by beating him, stripped the young man of his dignity. As such, the treatment was degrading. Interestingly, the UK system (under which the Isle of Man falls as a Crown Dependency) was unable to remedy the predicament without the ECHR.

Is it a coincidence that the case which established “… the very essence of [the ECHR] is respect for human dignity”, was also a case against the UK? The ECtHR made clear the role of human dignity within the ECHR in the case which confirmed that marriage could not be a defence to rape and that consent could not be implied by the simple fact that a couple had been married.

Dignity in the UK

Does the UK system of Government guarantee human dignity? Outside of the HRA and the incorporation of the ECHR, it is difficult to assert with confidence that dignity can be guaranteed. There is no statutory framework providing for a right to human dignity. The common law has made occasional references to human dignity. These handful of cases have concerned welfare issues or circumstances where a person is on life support and who has no sensation or awareness. For example, in the Bland case, the treating clinicians made the case about human dignity and sought a declaration that they might, “lawfully discontinue and thereafter need not furnish medical treatment to [him] except for the sole purpose of enabling him to end his life and die peacefully with the greatest dignity and the least of pain suffering and distress.” The courts therefore engaged with dignity.

However hard we seek a right to human dignity as a principle of common law, the exceptions prove the rule that it does not exist in any meaningful way.

Therefore, unless someone wishes to put forward an argument that the UK does not need a right to human dignity, which is a very unattractive proposition, the only meaningful source of that right is the HRA/ECHR. Diluting that framework and/or the role of the ECtHR’s jurisprudence in the UK may have the consequence of constraining the right to human dignity. And, if that is the case, we will all lose out.

If the HRA’s scheme and scope is to be watered down, an option would be to establish a statutory right to human dignity. But it should not be either or. We need both the HRA and a Human Dignity Act which ensures all actions of public authorities comply with the right to human dignity, including the Crown.