It was perhaps to be expected that the 60th anniversary of the Universal Declaration of Human Rights, which fell on 10 December, would inspire renewed discussion on the subject, particularly as the main political parties position themselves in readiness for the next general election. What was, however, rather less foreseeable was a remarkable attack on human rights delivered on 24 November by shadow justice secretary Nick Herbert in a lecture at the British Library entitled Rights without Responsibilities – A Decade of the Human Rights Act.
In part Herbert directs his attack at the existing state of affairs. He makes three main points. He condemns the Human Rights Act for having eroded parliamentary sovereignty and weakened the separation of powers. He complains that public authorities are inhibited by the Act from the effective performance of their functions. And last but not least, he suggests that our concern for international breaches of human rights has been weakened. If all this bore the slightest relationship to reality, it would indeed be something of an indictment.
For good measure, Herbert throws in his antagonism, for the future, to the prospect of any enlargement of the list of human rights currently forming part of our law. The notion that, in common with other jurisdictions such as South Africa, we might move towards some form of declaration of basic social and economic rights, such as the right to a healthy and sustainable environment, receives short shrift from the opposition spokesman.
Let us try to identify succinctly the fallacies in this extraordinary diatribe. In his principal complaint concerning parliamentary sovereignty and the separation of powers, Herbert has plainly overlooked or failed to grasp the essential structure created by the Human Rights Act. Everyone knows that the effect of the Act was to incorporate into our law the European convention on human rights, thereby enabling citizens to enforce their rights in our own courts rather than engaging in the difficult and lengthy process of resorting to the European court of human rights in Strasbourg. But what does this mean in practice?
Essentially it means two things. First, a citizen who considers that a public authority (an organ of the state) has contravened, or may be about to contravene, their human rights now has the opportunity to resort directly to our courts. In deciding whether a public authority has contravened or is about to contravene the rights of an individual citizen, the courts are carrying out exactly the same legal and constitutional function as they perform in relation to any other legal issue. Of course it may be necessary in many cases for a balance to be struck between competing interests, but to suggest that this is a task which falls upon judges uniquely in a human rights context is literally absurd. This part of the process no more involves the politicisation of the judiciary than any other of their myriad of functions. Moreover, the development of British human rights case law ensures that internationally agreed human rights principles are applied here with due regard to our history and social traditions.
Second, since parliament itself is an organ of the state, it was and is inevitable that, from time to time, it will be essential for the provisions of parliamentary legislation itself to be scrutinised against human rights criteria. Herbert implies that he would prefer to revert to the days when no such constraints applied to parliament, overlooking that it was an earlier and very distinguished Conservative minister, the former lord chancellor Lord Hailsham, who described the situation then existing as ‘elective dictatorship’.
The Human Rights Act provides, by contrast, for an absolutely essential constraint upon the ability in our modern society of the will of the majority (expressed through an elected parliament) to overpower the legitimate interests of minorities. But note how carefully the Human Rights Act achieves this objective. Parliament remains sovereign. The furthest which a court can go (and to date this has happened very rarely indeed) is to do what courts quintessentially do, which is to interpret relevant legislation in the light of the Human Rights Act, and in the last resort to declare as a matter of law that the provisions of a particular section of a particular Act of Parliament are inconsistent or incompatible with human rights as defined in the Human Rights Act. So far and no further. If anything is to be done to correct this incompatibility, it is for parliament so to act. Does Herbert seriously suggest that, in such circumstances, the courts should stay silent?
His second major criticism concerns the way in which the Human Rights Act has impacted upon the functioning of public authorities. In undertaking an objective evaluation of this issue, it is as well to bear in mind that the incorporation of the European convention on human rights into our law has taken place during a period in which, at the same time, our domestic administrative law has flourished and expanded. It is fairly arguable that, to the extent that pubic authorities today are very much more aware of the need to respect individual human rights than they were 30 years ago, this is due to a combination of factors, among which, pre-eminently, are the development of essentially judge-made principles of administrative law, together with the incorporation of the European convention on human rights. No lawyer with relevant experience would dispute this proposition.
But what is Herbert’s position? In his condemnation of the Human Rights Act, he is strangely silent about the growth of administrative law generally. Is he favourable or hostile to the ability of the courts to subject official decisions to legal scrutiny? And assuming that he is not prepared to say that he is hostile to this, what possible objection can there be to such scrutiny being based partly upon the notion of enforceable individual human rights?
Herbert seeks to support his case by referring to a particular example, often referred to in this context by critics of human rights, namely the case of Naomi Bryant, who was tragically murdered in 2005 by a man called Anthony Rice, a convicted rapist. Regrettably, Rice had been released by the Parole Board following a recommendation by Probation Officers. Herbert refers to the fact that in a subsequent report, the Chief Inspector of Probation contended that prison and other officials were ‘side-tracked by considering Rice’s human rights above their duties to the public’. What Herbert fails to point out in relation to this case is that what went wrong was that by a pure administrative error, the details of Rice’s criminal record were not placed before the Parole Board which considered the question of his release.
Naturally, this fundamental explanation for the ensuing tragedy in the case of Naomi Bryant fits uneasily with Herbert’s analysis – an administrative mistake (and in this case a very serious one) will occur from time to time irrespective of the state of the law on human rights or indeed the state of the law on anything else. One might add that, objectively speaking, the more sensitive public officials are to the rights of individuals including the rights of the victims of crime, the less likely it is that mistakes such as that which occurred in the Naomi Bryant case will be repeated.
Herbert’s third criticism relates to our perception of breaches of human rights abroad. He manages to construct an argument to the effect that, as a result of the Human Rights Act, we take less seriously the widespread abuses of human rights in other countries. It is difficult to comprehend this argument sufficiently to enable one to make a reasoned response to it. Suffice it to say that there can be little doubt that if a British government decided to repeal the Human Rights Act, this would clearly be seen as a massive blow to the maintenance of human rights around the world, and would be deeply disheartening to the many thousands of brave people in places like those African states (formerly part of the British and other colonial empires) where abuses of rights are so widespread.
As an aspect of his discussion in this area, Herbert asserts that our participation in the European court of human rights has not had a particularly constructive effect upon the decisions of the Strasbourg court. One of us can rebut this proposition from personal experience, since some years ago, Stephen Hockman was involved in some litigation in which an attempt was made to suggest that our system of town and country planning law was incompatible with human rights, in that by conferring upon a minister of the Crown the ultimate right to determine planning applications, the system was incompatible with Article 6 of the convention guaranteeing the right to an independent and impartial tribunal.
In rejecting this argument (and in saving the planning system and many other systems of administrative adjudication from effective disintegration) the House of Lords drew heavily upon Strasbourg jurisprudence, but most particularly upon case law in which the British judge Sir Nicholas Bratza had played a significant part. It is regrettable that Herbert (or those who helped him prepare his paper) do not seem to have scratched very far below the surface of human rights jurisprudence, and have confined themselves to a few politically sensitive cases which have occasionally hit the headlines.
Herbert’s lecture suggests that the Conservatives may be about to take to heart Oscar Wilde’s advice that the best way to deal with temptation is to give in to it. There can be little doubt that the public as a whole is still somewhat sceptical about human rights, partly because some of the fundamental realities which have been outlined in this article have all too rarely been clearly and fully explained. There is therefore a temptation to make political capital out of this scepticism, irrespective of the detriment which would be caused by so doing. It is to be hoped that this temptation will be resisted, and that a reasonably bipartisan approach to this topic can be preserved.
There are some serious issues to be debated for the future, many of which were very fully discussed in the recent report by the all-party joint parliamentary committee on human rights. In that report, the possibility of progress in relation to the declaration of economic and social rights was fully and interestingly discussed. There is also the question (again politically sensitive) of whether it will be desirable to legislate for responsibilities as well as rights. It is sometimes overlooked that most of the rights defined in the European convention are already ‘qualified rights’, ie the citizen’s ability to exercise such rights is not unqualified, and depends upon whether such rights can be exercised compatibly with other competing social interests. These are matters for serious debate by serious people.