By Liz Davies
The Conservative Party has long been on the warpath against the Human Rights Act 1998 (HRA). Theresa May, as Home Secretary, told Conservative Party Conference in 2011: “We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.” She was not making up the existence of the cat, but she was glib about the cat’s relevance: it featured in a judgment as an example of the solidity of the man’s four year relationship with his girlfriend, in a case that the Home Office had already conceded.
One of the important features of the HRA is that it retains Parliamentary sovereignty. The UK Courts cannot strike down legislation because it is incompatible with human rights, as the US Supreme Court can do. Courts are required firstly to try to interpret legislation in a human rights-compliant way. If – and only if – this is impossible, then the High Court can make a “declaration of incompatibility” that a particular statute is incompatible with human rights. This happens rarely but even where Courts do make a declaration, the legislation is not declared null and void. It remains on the statute books and in effect until Parliament legislates to remedy it.
Judges hearing human rights cases respect the importance of Parliament. In cases concerning welfare benefits, or other social and economic rights, judges will note that legislation could only be said to be discriminatory if it is “manifestly without reasonable foundation” and have refused challenges to the bedroom tax, the benefit cap and other aspects of welfare benefits. Judges have also refused to follow the European Court of Human Rights’ decision that human rights require that prisoners should be permitted to vote, holding that it is a matter for Parliament.
Despite this, Tory politicians from 2006, barely six years after the HRA had come into force, have called for “home grown” rights, rather than European rights. The Conservative Party’s 2015 manifesto promised to “scrap” the Human Rights Act. The Conservatives’ 2019 manifesto simply promised to “update” the HRA, toning down the previous inflammatory language. But, once re-elected, the Conservative government very quickly launched a call for evidence as part of an Independent Human Rights Act review.
Most respondents to the call for evidence were strongly in support of the Human Rights Act. The Independent Review did not find that extensive reform of the HRA was necessary and simply made a number of technical suggestions. Despite that, Dominic Raab, Justice Secretary and Lord Chancellor, announced a consultation on 14th December 2021 for “A Modern Bill of Rights”. No surprise that he is hostile to the HRA; he is on record from 2009 saying, “I don’t support the Human Rights Act and I don’t believe in economic and social rights.”
The consultation, which is open until 8th March 2022, contains a number of disturbing proposals, and uses the Tories’ favourite stereotypes to make its case:
- Abu Qatada, where the European Court of Human Rights prevented his deportation to Jordan because he was at risk of torture there. He was eventually deported after the Jordanian government provided assurances that he would not be tortured;
- Hirst, where the European Court of Human Rights has consistently found that prisoners should be permitted to vote, and the UK Parliament has consistently voted against prisoners having the franchise; and
- Hatton. where the European Court of Human Rights found that noise pollution from Heathrow could be an interference with a person’s right to respect for private and family life.
The consultation paper argues that these cases are examples of human rights being extended far beyond the intention of the original drafters of the Convention in 1951. The short answer is that no one knows what those drafters thought about modern concepts such as noise pollution, or international agreements permitting deportation.
“Foreign national offenders” and other convicted prisoners are said to have shown a flagrant disregard for the rights of others, which is of course true, but that does not mean that their human rights are irrelevant to any decision whether to deport. Public authorities are also said to have become burdened by positive human rights obligations, and the example given is the obligation on police to warn possible victims of an imminent threat to them. This follows the case of Osman where the European Court of Human Rights found that the police should have taken steps to warn a teacher who was subsequently stabbed to death by a pupil.
The specific proposals row back from the rhetoric. The HRA could be amended to allow for the primacy of UK precedent and to acknowledge the place of the UK’s Supreme Court. More substantive are proposals on strengthening Article 10’s right to free speech, legislating for a permission stage for human rights cases so as to ensure that “unmeritorious cases are filtered earlier” and for there to be various provisions before Parliament is asked to legislate to remedy any statute declared incompatible with human rights. Finally, human rights issues in deportation cases should be given less significance. This is the Tories’ favourite weapon: using the bogeyman of “foreign criminals” to weaken human rights.
The reality is that this is an attack on the HRA. The consultation, and the Tories’ rhetoric, are designed to undermine the three important facets of human rights.
First, that human rights cannot only apply to popular causes. There are plenty of examples where human rights have been used for causes that generally enjoy popular support, such as survivors of the rapist John Worboys challenging the Parole Board’s decision to release him, or bereaved families of soldiers at Deepcut barracks to expose the culture there. But the point about human rights is that they should also apply in circumstances where public opinion might be opposed to those relying on the rights. If rights only protected popular causes, we wouldn’t need them as they would not be “rights” but rather popular opinion.
Second, all of us need human rights. The parents of Melanie Rabone probably never thought that they would need human rights until, tragically, their daughter killed herself and they showed, through the Courts, that the hospital who had been treating her should not have permitted her to leave. The campaigners against Heathrow expansion experiencing aircraft noise from early in the morning until late in night needed human rights, because UK domestic law did not recognise the idea of noise pollution unless it caused injury. If the stereotypes of “foreign criminals” are prevented from relying on human rights, how soon will those rights also be withdrawn from the rest of us?
Third, unless the UK were to withdraw altogether from the European Convention on Human Rights, individuals will still be able to litigate about human rights. The difference is that they will have to litigate at the European Court, with the resultant publicity and cost of any decision that the UK government has breached human rights, rather than domestic judges being able to determine human rights cases.
Just to be clear about “foreign criminals”, they cannot use human rights as a “get out of jail” or “get off the deportation plane” trump card. Their human rights, and those of any family members, are part of a balancing exercise where considerations of public security, the nature of their offence and whether they have been in the country a short or long time are all relevant.
The Labour Party’s response to the consultation has been disappointing, particularly given that the HRA is Labour legislation, and that the Party is led by a former human rights lawyer. Steve Reed, Shadow Justice Secretary, described it as a “dead cat distraction tactic” designed to divert attention from the damage done to the criminal justice system, and called for government to stretch “every muscle and sinew to make sure that rapists and violent offenders are banged up behind bars where they belong.” It seems that he has fallen for the rhetoric: that the HRA frees rapists and violent offenders. Yes, the police should be more focused on prosecuting allegations of rape. But we need the Labour Party to oppose these proposals, which weaken the UK’s commitment to human rights across the board.
Liz Davies is a barrister specialising in housing and homelessness law and a member of New Forest West CLP.
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