HUMAN RIGHTS AND THE RULE OF LAW

 

In this post Stella Coyle, of Keele University, discusses the importance of the Human Rights Act in British law and argues that the Act strengthens Parliamentary sovereignty and maintains the separations of powers.

The Human Rights Act 1998 (HRA) has faced criticism since the Conservatives took office in 2010. A persistent theme has been the HRA’s supposed undermining of ‘British [legal and democratic] values’ and the consequent need for a British Bill of Rights to replace it. However, its detractors should acknowledge that the Act is firmly grounded in values and principles that are fundamental to our law and society, and it plays a vital role in upholding them. A fundamental principle, in any society that values justice and equality, is the rule of law. The precise meaning of the rule of law has long been debated, but for the purposes of this analysis, Lord Bingham’s definition will be used.

Lord Bingham synthesised the substantive conception of the rule of law: a state’s citizens and authorities should be bound by, and benefit from, laws publicly made and administered – and his view of the substantive meaning of the rule of law: a state which represses or persecutes its citizens cannot be said to adhere to the rule of law, even if the laws authorising the repression are properly enacted and implemented. This synthesis produced Bingham’s definition of the rule of law, which was subsequently adopted by the European Commission on Democracy Through Law (Venice Commission) in 2011: 

(1) Law should be accessible (intelligible, clear and predictable); 

(2) Questions of legal right should be normally decided by law and not discretion; 

(3) There should be equality before the law; 

(4) Power must be exercised lawfully, fairly and reasonably; 

(5) Human rights must be protected; 

(6) Means must be provided to resolve disputes without undue cost or delay; 

(7) Trials must be fair, and 

(8) The state should comply with its obligations in national and international law.

The HRA incorporates rights contained in the European Convention on Human Rights (ECHR) into domestic law, so that they can be relied upon in domestic courts. Opponents of the HRA regularly cite examples – with varying degrees of accuracy – of cases where rights such as Article 8 (the right to privacy and family life) have been exploited by the ‘undeserving’. It is important to challenge these inaccuracies with cases that show how human rights uphold the rule of law. The following two examples illustrate the importance of ECHR rights for (i) victims of anti-gay discrimination and (ii) victims of serious crime. The discussion also highlights how these rights are reflected in Lord Bingham’s formulation of the rule of law - the cornerstone of a Britain that wishes to be a genuinely just society.

The HRA came into force in October 2000. The previous year, Navy personnel, who had been investigated and dismissed for being gay, had to go to the European Court of Human Rights (ECtHR) in Strasbourg to assert their ECHR rights. The ECtHR held that their dismissal on grounds of sexuality was a breach of Article 8 that could not be justified as being ‘necessary in a democratic society’. The government had argued that its policy on gay military personnel was justified as being in the interests of national security and the prevention of disorder. However, the ECtHR considered that the attitudes displayed towards the gay personnel represented a ‘predisposed bias on the part of a heterosexual majority against a homosexual minority’ and did not provide ‘sufficient justification for the interferences with the applicants’ rights… any more than similar negative attitudes towards those of a different race, origin or colour’. 

Article 8 is one of the ‘qualified rights’ under the ECHR, which means that the right to a private life can be subject to limitations, but only if the limitation is a proportionate means of achieving a legitimate aim. Furthermore, when government interference with such rights involves ‘a most intimate part of an individual’s private life’, the ECtHR will require ‘particularly serious reasons’ before it can be justified. As well as being an illustration of the requirement that interference with ECHR rights must be proportionate, this case reflects several ingredients of the rule of law: equality before the law; power must be exercised fairly; human rights must be protected; and compliance with international law obligations. The HRA has enabled this principle of proportionality to enter UK law as a ground of judicial review in human rights cases. It may prove to be ‘a more structured and transparent means of review’ than the traditional ground of unreasonableness. 

More recently, in the case of the ‘black cab rapist’ John Worboys, the UK Supreme Court found that police investigative failures were held to be a violation of the women’s rights under Article 3 ECHR, which provides that no one shall be subjected to torture or inhuman or degrading treatment or punishment. Worboys worked as a black cab driver in London and was convicted of sexual offences against 12 women, each of whom he had picked up as fares. He pretended he had won a lot of money and suggested that they share some champagne with him to celebrate; the champagne had been laced with sedatives. Worboys subsequently raped or sexually assaulted the women. Over six years, a total of 14 women had reported their experiences to the police, but despite the similarities the police failed to link the cases. At one stage, Worboys was arrested but was later released, having convinced police that his victim had been drunk and kissed him. The Independent Police Complaints Commission found that proper investigation could have prevented some of Worboys’ attacks. 

The Court confirmed that two of Worboys’ victims were entitled to compensation for the serious defects in the police investigation of their claims and in prosecuting their attacker – a delay which caused one of the victims serious psychiatric harm. The Court agreed that Article 3 obliges the state to undertake an effective investigation when it receives a credible report of serious harm. Lord Kerr highlighted the ‘clear and constant line of authority’ from case law of the ECtHR, showing that the state has a duty to conduct effective investigations into crimes of serious violence, whether or not it is ‘fair, just or reasonable’ to impose one. This decision underlines two of the key aspects of the rule of law: that means must be provided to resolve disputes without undue cost or delay; and that human rights must be protected. The importance of this decision cannot be understated, because when the police sought permission to bring their appeal to the Supreme Court, the then Home Secretary, Teresa May, intervened on their behalf in what was described as an ‘unprecedented and highly politicised move’. The HRA enabled these women to achieve justice in the face of state intransigence and police hostility towards their claims of sexual assault. 

The HRA has faced criticism for its requirement that domestic courts take ECtHR decisions into account. However, this does not necessarily mean they must follow them; courts ‘should usually follow a clear and constant line of decisions… but we are not actually bound to do so’. Indeed, the developing body of HRA case law acknowledges circumstances where courts may depart from ECtHR jurisprudence. As Fenwick and Masterman illustrate, departure is already accepted where Strasbourg jurisprudence is not ‘clear’ or ‘constant’, or where it is ‘out-dated’; where relevant Strasbourg jurisprudence is clear and constant, but is inconsistent with a domestic binding precedent; where it has failed to understand a point of domestic law; or where it has failed to take account of factual matters or a principle of domestic law. Thus, as Fenwick and Masterman argue, many of the objections to HRA s 2 ‘are being, to an extent, neutered’. Moreover, the provisions of ss 3-4 mean that, although domestic legislation must, as far as possible, ‘be read and given effect in a way which is compatible with the Convention rights’, any declaration of incompatibility with the ECHR does not mean that the courts can strike down the legislation.

Therefore, it can be said with confidence that the Human Rights Act has a place in British society and in the constitution. Rather than elevating the ECHR and the ECtHR to a higher status than statute or the domestic courts, HRA jurisprudence preserves Parliamentary sovereignty and maintains the separation of powers. Moreover, the HRA buttresses the rule of law: every public body must comply with Convention rights, except when there is no available alternative because of the requirements of primary legislation. As Fenwick and Masterman conclude, replacing the HRA with a British Bill of Rights would be ‘a clearly retrograde step, opposing the notion on the international stage, that the UK’s human rights’ record is one that is overall to be respected.’