HRA 1998: irreversible?

19.11.10

 

This article was written by John Cooper, partner and Chris Warburton, solicitor in Wragge & Co's Public Law & Regulation team and published in the November 2010 issue of New Law Journal.

In Brief

• There are several reasons for believing that a repeal of the HRA would not leave a vacuum, but a space into which the common law would be both able and willing to expand.
• There is evidence that even before the election the Conservatives were beginning to accept that a repeal of the HRA was not a legally simple matter, and to envisage their British Bill of Rights as incorporating Convention protections.

Ten years after it came into force, the Human Rights Act 1998 (HRA) remains one of the most divisive pieces of legislation on the statute book. Negative perceptions of the Act and its effects are played out daily in large parts of the media. "It has undoubtedly", said Baroness Hale speaking earlier this year, "enjoyed a very poor press".

At first sight this is surprising. The HRA was enacted with cross-party support. It incorporated into domestic law an international treaty-the European Convention on Human Rights (ECHR)-to which the UK had already been a signatory for almost half a century. And it allowed UK residents to enforce this law in their own courts instead of having to travel to Strasbourg to seek justice in the European Court of Human Rights.

Described in these terms, the HRA ought to have been uncontroversial. And indeed to its supporters the merits of the Act are usually self-evident. Yet critics frequently regard it as an alien intrusion into the realm of traditional "British" law, the cause of a social imbalance in which the rights of individuals are all too often emphasised to the detriment of their responsibilities, and the source of excessive power for the democratically unaccountable judiciary.

In the run-up to the most recent general election, the Conservative Party sought to align itself with this anti-HRA sentiment. David Cameron promised on several occasions to "abolish" the Act, and his party manifesto pledged to replace it with a "British Bill of Rights". The Bill, it was strongly implied, would not only distance the UK from the judgments of the European Court, but would be much less substantive in its effects than the HRA which it superseded.

This proposal was no doubt intended to be attractive to certain sections of the electorate, and so serve a useful political purpose. But did it ever amount to a policy that could be readily delivered in legal terms? There is every reason to believe that it did not.

The Road to Strasbourg

The first point to make is an obvious one, but it seems nonetheless to have escaped the attention of most political commentators. Unless the UK were to withdraw its signature from the ECHR-in foreign policy terms an almost unthinkable idea, and one that was in any event expressly disavowed by the Conservative Party as early as 2006-the residents of the UK will continue to benefit from its protection. For so long as the UK is a party to the Convention, the government is obliged to secure the rights protected by it for everyone within its jurisdiction.

Therefore, even if we assume that "abolishing" the HRA would preclude rights-based claims being pleaded in the domestic courts, the European Court of Human Rights would still be able to entertain claims from UK residents. At most, the consequence of repeal would be a change of venue for anyone who sought to enforce their Convention rights. UK residents claiming that their rights had been infringed would still be entitled to redress. But to get it they would have to go to Strasbourg.

It is difficult to see how this would benefit anyone, including the court in Strasbourg which already labours under an excessive burden of work. But would the repeal of the HRA even have this limited consequence? It is far from clear that it would.

Enter the void

The repeal of the HRA would create a void in domestic law. But there are at least three grounds for considering that it would not remain empty for long. They are:

EU law

The law of the European Union embodies the requirement to respect fundamental human rights. Following the Treaty of Lisbon, which came into force in late 2009, EU member states are obliged to comply with the EU Charter of Fundamental Rights (the Charter) whenever they act within the scope of EU law.

The Charter reaffirms and builds upon the rights enshrined in the ECHR. While the UK has adopted a Protocol to the Charter, which states that the Charter does not create new rights justiciable before domestic courts, this is widely regarded as a political document of no legal effect. The Charter is merely a codifying instrument, and does not purport to create new rights. It is simply declaratory of the rights already protected by the wider body of EU law.

In practice, on any repeal of the HRA, the Charter would provide a point of reference for continuing the application of Convention rights in domestic law, at least in all cases in which the legal dispute in question arises within an EU law framework.

International law

The role of international law in domestic cases is a complex subject. While the starting point is that international treaties which are not incorporated into domestic law do not have direct effect, it is increasingly common for them to be recognised in a number of ways which shape the development and interpretation of the law.

For instance, unincorporated treaties are used to resolve ambiguities both in legislation (R v Lyons [2002] UKHL 44) and the common law (A v Secretary of State for the Home Department (No 2) [2005] UKHL 71). And where decision makers profess to take administrative action consistently with them, the courts will ensure that the international legal standard is properly applied (R v Secretary of State for the Home Department ex parte Launder [1997] 3 All ER 961).

Therefore if by the repeal of the HRA the government sought to reverse the existing incorporation of the ECHR in UK law, the treaty would at the very least continue to be applied in these ways.

Repealing the HRA: entering the void

The repeal of the HRA would create a void in domestic law. But there are at least three grounds for considering that it would not remain empty for long. They are:

• The EU Charter of Fundamental Rights.
• The domestic application of international law.
• The development of a rights-based jurisprudence in the common law.

The common law

In addition, as Lord Steyn has observed (Re McKerr [2004] UKHL 12), within this general treatment of international obligations, human rights appear to have a special status in the UK courts. The two principal requirements of the HRA are that public authorities must act compatibly with the Convention rights in the exercise of their functions, and that the courts (being public authorities on their own account) must uphold those rights whenever they can interpret the law to do so.

The common law has a long tradition of recognising and protecting basic rights, including many of those later enshrined in the ECHR. It has embodied these protections both generally in its own development and specifically in the judicial control of administrative actions by public authorities (through modern judicial review and its predecessor actions). Indeed it was this tradition to which the draftspersons of the ECHR looked when shaping the Convention rights, and only afterwards that different lines of authority developed in the UK and Strasbourg courts.

There was already convergence between those lines of authority in the years before the HRA was passed. In Attorney General v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545, fully 10 years before the enactment of the HRA, Lord Goff summarised a judicial approach almost entirely at one with what would become s 3 of the Act. He said: "I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the ECHR]".

Similarly, in R v Lyons, Lord Bingham, reviewing the pre-HRA history of human rights protection at common law, said: "Even before the 1998 Act, the Convention exerted a persuasive and pervasive influence on judicial decision-making in this country, affecting the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law".
Without question, the HRA has rapidly accelerated the pre-existing tendency of the common law to align itself with Convention jurisprudence by providing statutory underpinning for such alignment. It is almost certain that, absent the Act, domestic law would not have developed so far or so fast in accommodating Convention rights as it has done.

But it does not follow that repealing the HRA would cause the common law to shrink back within its former parameters as if the Act had never existed. While the Act may have been the tide on which full recognition of Convention rights was brought to the UK, its withdrawal seems unlikely to have the reverse effect. Human rights thinking (already, as Lord Bingham noted, highly influential prior to the HRA) is now thoroughly interwoven into domestic law. It seems quite capable of subsisting there without direct legislative support.

Don't look back

So there are several reasons for believing that a repeal of the HRA would not leave a vacuum, but a space into which the common law would be both able and willing to expand.

However, this does not mean that the future of the Act should be a matter of indifference. At the very least, its repeal would be likely to cause considerable uncertainty in the period before suitable cases could be taken to the Supreme Court. It would remove the explicit democratic underpinning from the protection of Convention rights in the UK. And it would risk placing the judiciary at odds with Parliament.

Perhaps for this last reason senior serving judges have been unusually outspoken in their support for the HRA. Lord Phillips has called the Act "an outstanding contribution to the upholding of the rule of law in this country". And Baroness Hale has disclosed the revealing observation that "among the Supreme Court judges sitting behind the woolsack to hear the Queen's Speech at the opening of the new Parliament...there was some relief to hear that it is not instantly planned to repeal the Human Rights Act".

There is evidence that even before the election the Conservatives were beginning to take the point that a repeal of the HRA was not a legally simple matter, and to envisage their British Bill of Rights as incorporating ECHR protections. And, in fact, the recent Coalition Programme for Government makes it unequivocally clear that this is now the policy intention. It states that: "We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights [and] ensures that these rights continue to be enshrined in British law..."

Perhaps this is intended to take advantage of the helpfully ambiguous nature of the "British Bill of Rights" proposal. Or perhaps it can be regarded as a genuine concession which is attributable, like other inevitable policy compromises, to the requirements of coalition government with the (HRA-friendly) Liberal Democrats. In truth, however, it was always the only outcome that made any sense.

For further information about this published article, contact Kathryn Hobbs on +44 (0)121 685 2785, Rebecca Davies on +44 (0)121 685 3819, Gayle Biddle on +44 (0)121 685 2708 or Amy Richards on +44 (0)121 260 9973

This published article may contain information of general interest about current legal issues, but does not give legal advice.