David Mead: Who You Gonna Call – Mythbusters: the Need For Vigilance in the Great HRA Debate

davidmeadIt’ll be over by Christmas we thought – strongholds taken, fortifications dug in and positions entrenched. “It gives too much power to judges”…”why do we need to have any more European law?”…”like health and safety, only gone madder.” The debate over the HRA and a possible British Bill of Rights has become formulaic and sterile, no quarter ever conceded lest that be seen as a weakness for the other side to steamroller in and on to success. Gavin Phillipson in his recent ‘blogpost in these pages noted the political coalescence against the HRA.  Truth and accuracy have succumbed to hyperbole and straw men, victims of the battle. Becoming tougher on rights and tougher on the causes of rights is only likely to intensify in the run-up to the publication of the Commission on a Bill of Rights report, expected in the next few weeks.

The latest skirmish saw the defeat this week of a ten-minute rule bill proposed by Tory backbencher, Richard Bacon (coincidentally my local MP). His bill, calling for repeal of the HRA, was defeated by 195 votes to 72. As with many of those seeking repeal or arguing for wholesale reform, much of the blame was misdirected – lain instead at the door of the undemocratic European Court and its perceived illegitimacy. That is, it is true, a question – but not one that is integral to resolving the conundrum of the HRA. Another weapon, almost always in the hands of the right, is to claim that the HRA and the ECHR has trivialised support for ‘real’ rights, or as Nick Herbert in his recent Policy Exchange Kingsland Memorial lecture called “the great rights”.

These points , and many more, need to be confronted by all of us who support some form of home-grown system for protecting rights but – and this is the point of this post – do we really offer that support best by creating and propagating our own myths? It is one thing to disabuse readers of The Sun which was urging the government to “Rip Up The Human Rights Act; the cause of rights can only be enhanced by showing underhand tactics for what they are. It is another to found a positive case for retention by being “economical with the actualité”.

Rebuttals and counters put out by supporters of the HRA aren’t immune from charges of partiality. The evening before the ten-minute rule debate, shadow Secretary of State for Justice, Sadiq Khan, put out Ten Myths about the Human Rights Act on LabourList, in an attempt to head off many of the usual suspects that were likely to be arrayed the following day. Khan is right on many points: clearly the HRA is likely to be more protective of rights for no other reason than that the common law can be “overridden by new legislation.” He was right too to highlight media portrayals that present a skewed truth. There was never any hope of Dennis Nielsen ever obtaining hard-core S & M pornography by calling in aid Article 10 – and it was rejected at the permission stage – yet shadow Home Secretary David Davis in an article in The Daily Telegraph in August 2004 asserted he’d been able to do so. These misunderstandings (in best light) – perhaps deliberate falsities – need to be combated. The DCA did so successfully in its Review of the Implementation of the Human Rights Act in 2006 but have these corrections made it in the public psyche – or are we still suffering the equivalent of EU “bent banana” syndrome? Equally, as Khan notes, there is a clear lack of public understanding, but not lack of support it seems – though of course it was the Labour government that simply landed it, without any consultation or public “buy-in”, something on which Alice Donald has commented so forcefully. It must also be sensible to advert to the Tories’ insistence on it being a British Bill of Rights – with its undertones of nationalism and concerns about limiting eligibility – and to assert that the rights in the HRA are rights for all equally, that it’s not simply “lefty claptrap about rights of minority groups”.

As well as these sound points, Khan does run the risk of some own goals, which might allow his rebuttals to be latched onto in turn by opponents as mischief-making and myth-creating. First, to deal with the assertion that “The HRA is foreigners imposing their human rights laws on Britain”, Khan writes that “history shows that it was Brits that wrote the ECHR. They are our human rights laws.” This of course is true of the Convention itself, the role of David Maxwell-Fyfe (later Lord Kilmuir) well-known, so to that extent, the ECHR is if not a British invention then at least very heavily influenced by British involvement. But is that what critics really mean, really complain about? It is not the ECHR that is ‘applied’ in the UK through the mechanism of s.2 but the case-law of the Strasbourg Court. The Convention itself is broadly worded and vague; it is case-law that tells us, to take an example, that the right to life in Article 2 also requires states to carry out an effective investigation into deaths. To that extent Gavin Phillipson and Alex Williams are surely not right (p.897) to argue that the HRA only makes rights binding, not the case law? No, the worry is that it is the jurisprudence of the Court that is being domesticated, either as an interpretative tool under s.3 or as a measure of government legality under s.6. Like all member states, the UK has only one judge at the Court. In that sense, the HRA – and the mirror principle adopted as the touchstone for s.2 – means that it is not unreasonable to assert there has been foreign imposition; simply pretending that the worry is misplaced does not make that worry vanish. Whether it is a good or bad thing is a further normative question – as is whether a panel of largely foreign unelected judges is qualitatively different to and lesser than a bench of home-grown unelected ones, given the universality of human rights …but these are not the questions Khan is grappling with. The fact that s.2 only requires judges to take account of Strasbourg law – and are not bound – does not really meet the objection, given the way the “no more, no less” principle has operated. Neither is Khan considering whether or not in extremis that there be an override power for national parliaments to be able to show their clear disagreement with ex cathedra pronouncements from the Court. On that, as we are seeing with the prisoner vote issue in the UK, there can quite properly be differences of view, yet it does the case for retaining the HRA little good for its supporters’ counter-arguments to be dealt with so easily.

Khan’s other problematic contention is when he counters the assertion that “judges now make our laws, not Parliament”. He gives this short shrift too:

Our Parliament is sovereign – it makes the laws of the land. Courts and judges don’t make laws – they operate within the laws as set by Parliament. Under the HRA, courts can only highlight human rights abuses – the so-called “declaration of incompatibility” – and it’s for Parliament to decide how to respond to such a declaration. While it can ignore the declaration, Parliament can’t be forced to change the law against its will.

It’s here I fear we’d simply have to agree to disagree. I have on these pages blogged about the dialogue model and specifically the downplaying of the impact of transformative readings under s.3. I have heard Francesca Klug and Shami Chakrabarti make the same point at public lectures in the past year: we shouldn’t be overly concerned with how the HRA operates since parliament retains its residual power to make and change law. Judges cannot do so; the most they can do is ‘warn’ by declaring legislation incompatible. That assumes a more pivotal role for s.4 than is usually accorded it, certainly in view of various judicial exhortations that it be a last resort. A more used remedy, certainly more versatile and more valuable to individual litigants, may well be s.3. “May well” because we simply do not know – and that is the problem. Data are not maintained on how far and on how many occasions judges have read words into statutes. If parliament is not aware – and the instances of s.3 being used does not feature in the annual Ministry of Justice report on human rights judgments – how will it know it has to act? It is a fudging of the real issue to maintain all is rosy simply because there is no strike-down power.

The position adopted by Khan here is also partial in that it ignores the wider judicial/political relationship being thrown out of kilter by enhanced proportionality review. It could feasibly be argued – and David Blunkett dedicated some of his career to exactly this – that the real impact of the HRA is in empowering judges to question and to control the substance of ministerial discretion on human rights grounds, so diminishing the scope for unchallengeable political decision-making. There are sound arguments either way – both as to whether judges indeed do so and should do so – but resolving that is not the point. Khan does not simply relegate this element of judicial power, he ignores it. While it could be argued that he is simply trying to deal with the ten most commonly lined-up counters to the HRA, he of course selected those ten. While the question of judicial power in the realm of legislation is undeniably a key one, the number of cases over the past decade where judges have utilised s.3 or s.4 are in low double-figures. That is probably the number of JR cases in a few months that the Administrative Court faces where the question is the proportionality of a minister’s decision. To ignore that crucial aspect is to mislead.

That leads to my final comment. In seeking to defend the HRA against its naysayers, there is no mention in Khan’s account of how the Labour Party in government – albeit before he was elected as an MP in 2005 – undermined the very legislation it brought in. Again, of course, that was not part of Khan’s project – but can half a picture really be true? From the Prime Minister downwards, unfounded and uncorrected assertions were made that the blame for various unpopular events taking place or unfurling – the Afghan hijackers not being deported, the release to kill again of Antony Rice – was the HRA. It is well documented in the JCHR report of 2006 on the DCA Review (above), in fact damningly so, that “…the Human Rights Act has been used as a convenient scapegoat for unrelated administrative failings within Government”. Is it so surprising now that the anti campaign has ascended to such heights when the framers of the Act gave it such a foothold? Dealing with the past, reconciliation, is the only real way to lay secure foundations for the future.

There are many and varied tough choices that need to be made as we move toward a future possibly with a British Bill of Rights rather than the HRA. At the heart of contemporary bills of rights debates is how to devise a mechanism that responds to the benefits that majoritarian decision-making can herald, for accountability, responsiveness and democratic legitimacy, and to the concerns it brings viz. that by definition it does not cater well for minorities – as well as the fact that it is responsive to our wishes only temporarily, at best to those currently able to vote. Human rights should be eternal, not ephemeral. That’s why conferring power on judges who do not need to seek election, let alone re-election, who can rise about party shenanigans, can seem so attractive. This must be especially so when the voting system functions to distort political power.  The pitfalls are again well rehearsed. I’m not proposing a solution but simply wondering whether “the next time you’re faced with a Tory in full flow castigating the HRA”, as Sadiq Khan ended his piece, you really are better off equipped with a myth-making myth-buster of your own?

David Mead, Professor of Public Law and UK Human Rights, University of Essex

 Suggested citation: D. Mead, ‘Who you gonna call – Mythbusters: the need for vigilance in the great HRA debate’ UK Const. L. Blog (6th December 2012)(available at http://ukconstitutionallaw.org).