*Editors’ note: this post is part of a series on ‘The Human Rights Act After 22 Years’, following the SLS Annual Seminar held in November 2022. You can read the first post in the series here.*
Before it entered the statute books, before it even had been brought to Parliament, the Human Rights Act (HRA) was subject to opposition which was to only strengthen over time. The nature of that opposition has varied since the publication of White Paper Rights Brought Home in October 1997, but it has served as a vehicle, and site of contestation, for many constitutional debates and disagreements over the past quarter century. Opposition to the HRA is also a reflection of broader social change in British society in the twenty-first century and this understanding is key to any analysis of contemporary proposals for reform.
There are, broadly speaking, three eras of opposition. In the first era, the early years, which roughly spanned 1997-2006, opposition to the HRA came in the form of general criticism of the government of the day’s constitutional agenda. At the 1997 election the Labour party presented the introduction of the HRA as part of a constitutional package, alongside devolution, House of Lords reform and freedom of information. This attracted small ‘c’ constitutionalist opposition with one editorial in the Daily Telegraph in January 1997 describing Labour’s proposed constitutional reforms as the ‘uprooting of our constitution’ and a ‘purge of all that is established’.
During the HRA’s passage through Parliament there was considerable criticism that it would put too much power in the hands of the judiciary. By association this also involved a lot of default EU/ Euro scepticism. The conflation of the two reflected a sense of uncertainty about change at the turn of the century; this can be seen in Nevil Johnson’s chapter in the Rape of the Constitution, a collection of essays published in 2000, where he warned ‘none of us can predict the future… human rights legislation will be influenced by factors outside British control, such as the further development of the European Union.’ Criticism of this sort only escalated over time, with reports in Hansard and the newspaper archives in 1999-2002 showing the emergence of a general sense among HRA critics that parliamentary power was being eroded.
What differentiates the first era from the second era is that after 2006 there was explicit consideration given to a wholesale repeal of the HRA and its replacement. A month after the terrorist attacks of 11 September 2001, the then Conservative Shadow Home Secretary wrote a column offering to support the government on technical reforms to the HRA to allow for the removal of terrorist suspects. Repeal of the HRA was not expressly mooted at this stage even though post- September 11th the association between the HRA and migration came much more to the fore. Although public concern about immigration and asylum had been rising since 2000 at first there was only a peripheral connection between the two made by opponents of the HRA. The effect of Chahal v UK and other decisions which were perceived to limit the removal of foreign terrorism suspects became a much larger feature of HRA criticism from around 2003 onwards. In June 2006, the then leader of the opposition David Cameron, made a speech arguing that the time had come ‘for a new solution that protects liberties’ which would involve replacing the HRA. In the summer of 2007, against a background of very high-profile arguments about immigration and deportation, Cameron reiterated this commitment with a pledge that a new human rights law would not show ‘excessive sensitivity to the demands of criminals’.
The person who defined the second era was Theresa May, who as Home Secretary from 2010 became the leading voice calling for the HRA’s repeal. Achieving notoriety for her 2011 speech claiming that having a cat could prevent deportation, she led the way in driving HRA repeal culminating in the publication in 2014 of proposals for a British Bill of Rights. Yet during the ‘May era’ public opinion on HRA repeal was mixed; support for the idea of protecting human rights in general remained strong, but the framing of particular cases by the media and politicians, such as Hirst v UK (No. 2), could invoke hostility. HRA repeal was able to get the salience that it did because it was consistently presented as intersecting with issues such as crime, immigration, and terrorism. There was limited evidence that in isolation HRA repeal was a public priority. Oddly the May era came to an end in December 2016 when the then Attorney-General Jeremy Wright made a short statement in Parliament saying that the government, now led by May as Prime Minister, would not be proceeding with HRA repeal.
The Brexit vote in 2016 began the third era of opposition to the HRA which was defined by concerns about sovereignty. At a crude level the concern about sovereignty can be summed up by the manager of the Vote Leave campaign saying that withdrawal from the European Convention on Human Rights (ECHR) would follow from the Brexit vote as people would thought they had ‘already left’ the ECHR. Despite a series of legislative measures making it harder to make successful claims under Article 8 of the ECHR to prevent removal from the UK, concerns about immigration and the role of the HRA remained a focal point for wider public criticism. The link between the HRA and immigration was by the third era of opposition to the HRA, much more linked to concerns about sovereignty over migration policy and the powers of the European Court of Human Rights (ECtHR), than it was to terrorism as it had been in the first era.
At a higher level, judicial criticism of the HRA commenced with Lord Hoffmann’s 2009 lecture where he questioned the ‘constitutional legitimacy’ of the ECtHR and focussed on the way that the HRA allowed domestic courts to interact with the Strasbourg court. Again, there was an extent to which this was addressed by judges giving more careful interpretations of the requirements of section 2 of the HRA and by reforms to the ECHR, such as the adoption of Protocol 15, which placed much greater weight on the role of domestic authorities in interpreting the Convention. Yet stories such as those relating to the Rule 39 decision by the ECtHR in response to the government’s Rwanda policy in 2022 showed how sovereignty could interlink with other policy areas. The third era was also a time when the difficulty of HRA repeal became a lot clearer, in part because the nature of what it meant for the UK to be sovereign had changed since the HRA came into force. The devolution settlements in Northern Ireland, Wales and Scotland and the provisions in the post-Brexit Trade and Cooperation Agreement (TCA) with the EU, all locked in ECHR membership, and therefore something very much like the HRA remaining on the statute books.
Throughout all three eras, opposition to the HRA has been driven by high level political and legal actors with access to the media. But it is wrong to assume that opposition to the HRA is simply due to broader public misunderstandings about the HRA, or the admittedly many instances of misinformation about its application. There has been a broader ideological dimension to this opposition, sometimes reflecting populist concerns over immigration, other times a constitutionalist concern about the allocation of power and competencies. At other times opposition to the HRA echoed a culturally conservative backlash to the advancement of the rights of minorities or has sat behind technical debates about the limits of privacy. In short, over the past 22 years, opposition to the HRA has reflected the changing nature of the society whose rights it protects.
Frederick Cowell is a senior lecturer in law at Birbeck, University of London.
(Suggested citation: F. Cowell, ‘The Three Eras of Opposition to the Human Rights Act’, U.K. Const. L. Blog (14th November 2022) (available at https://ukconstitutionallaw.org/))