The Human Rights Act:

Riding the tidal wave

In June of this year, Cherie Booth QC accepted an invitation to Belfast City Hall to deliver the keynote speech at a civic reception celebrating the 25th anniversary of the Law Centre. Queen’s Counsel since 1995, Cherie Booth now specialises in public, employment and European Community law. In Belfast, she spoke eloquently of the impact of the Human Rights Act. In the following pages we print an abridged version of her speech.

The coming into force of the Human Rights Act 1998 was forecast to be a "tidal wave" on the UK legal landscape by the Lord Chief Justice.

It is certainly true that the Act is not universally popular. Francesca Klug has noted that ministers rarely defend it. Late last year, leaked letters from Prince Charles to the Lord Chancellor apparently described the Act as a threat to a ‘sane, civilised and ordered existence"’ and claimed that it provided a magnet for ‘petty-minded litigiousness’.

In contrast, I believe the Act has proved correct my own initial optimism. Quite clearly, the experience to date – at least in England and Wales - has proved wrong the prediction of Lord McCluskey that it would merely provide ‘a field day for crackpots, a pain in the neck for judges and legislators and a goldmine for lawyers’. My own positive view is certainly not an isolated one. Lord Woolf has recently noted the ‘informed view’ that the Act has proved to be a great success. Despite fears over how the Act could be used to strike down government policy, in England and Wales there have been only seven outstanding declarations of incompatibility with legislation, and the Lord Chancellor has commented that ‘the prophets of doom have been proved wrong’. In Northern Ireland, there has been only one declaration of incompatibility, and as your Chief Commissioner Professor Dickson has similarly noted, in general the Act has not led to huge changes in your law as some had feared.

Even some sections of the media have praised it!

The Act's significance, of course, lies in the fact that it gives domestic effect to the European Convention of Human Rights. Although that Convention has been directly applicable in most European countries for more than a generation, and although British lawyers and politicians played a substantial role in its evolution and drafting, until recently it did not form part of our domestic law. Only rarely could reference to it in our courtrooms be of any relevance. To invoke it, a UK citizen had to travel the long road to Strasbourg, a journey that could take more than five years. In this respect, citizens of the UK stood at a significant disadvantage from most of those on the Continent.

But now the Convention has taken central stage here at home. Keir Starmer and Francesca Klug - two leading human rights lawyers in England - have identified that, of 428 cases heard in the higher courts in England and Wales in the eighteen months following its enactment, the Act affected the outcome, reasoning and procedure in 315. Human Rights Act claims were upheld in 91 cases, and remedies awarded in 86. Those are truly startling statistics which highlight the sheer pervasiveness of the legislation.

While perhaps suffering a little from its age, in that it does not protect economic and social rights like more modern human rights instruments do, the European Convention remains a wonderful instrument. What is more important than listing each of the individual rights it contains is an appreciation of the principles that underpin them all.

These are, in the words of the European Court of Human Rights itself, the values of:

	pluralism,
	tolerance; and
	broadmindedness.

At its heart lies a search for a balance between conflicting rights and between the rights of the individual and the essential needs of the wider community in a democratic society. As Lord Steyn has said, the Convention aims to promote the observance of human rights and the achievement of pluralistic and just societies.

This may sound much like a vague, broad ideal but ultimately it is the goal of all human rights instruments, and is the essence and objective of the Act. It is precisely this recognition of the balance of rights between the individual and society and between rights and their commensurate responsibilities which makes human rights so much more subtle than the more narrowly individualistic idea of civil liberties.

Once the decision had been made to incorporate that ECHR into English law, attention turned to the way in which incorporation would work in practice. The essence of the Act was and is, that human rights would be brought home into the very fabric of British society; so much so in fact that Bringing Rights Home was the title of the Human Rights Bill. The way the Act has worked in practice then, is that the various substantive articles contained in the Convention have been incorporated into English law. The effect of incorporation is that Convention rights now form a part of substantive UK law. They can be argued and relied on by individuals before courts and tribunals, and directly used to inform and justify the decisions of judges therein.

As regards the rights actually brought home to British citizens by virtue of the Human Rights Act then, these are many and varied. Furthermore, they are not all of a piece. The Act, because it follows the Convention, identifies three different categories of rights – absolute, limited and qualified.

The first category – those rights from which no derogation is permitted regardless of the circumstances - includes the right to life (Article 2), and the prohibition on torture, inhuman and/or degrading treatment or punishment (Article 3). The second category of limited rights includes liberty and security of the person (Article 5) and the right to a fair trial (Article 6).

Finally there are qualified rights, such as the right to respect for private and family life (Article 8), freedom of thought and religion (Article 9) freedom of expression (Article 10) and freedom of assembly (Article 11). All of these rights may be balanced against the general public interest before in order to determine whether they can be upheld in any given instance.

There are two key provisions in the Human Rights Act – section 3 (the interpretative obligation) and section 6 (the duty on public authorities).

Turning first to section 3, this section requires all domestic legislation, whenever enacted, to be interpreted as far as possible in a way that is compatible with ECHR rights. If however, a court or tribunal considering a case feels itself unable, under section 3, to interpret legislation in a way that renders it compatible, it cannot simply disapply the offending statute or parts thereof, rather it may, under section 4, issue a Declaration of Incompatibility (DOI). The result of a DOI is not to invalidate the legislation, but merely to trigger the ‘fast-track’ procedure whereby Parliament is able quickly to amend incompatible legislation to bring it into line with the Convention should Parliament decide to do so.

The other most frequently litigated part of the Human Rights Act is section 6, which makes it a statutory requirement for all public authorities to act compatibly with convention rights, unless it is impossible for them to do so by virtue of conflicting primary legislation. If Section 3 sees the judges interfacing with the legislative function then in section 6 we see the judges supervising the executive.

The definition of a public authority for the purposes of the act was deliberately made non-exhaustive, although it was clearly intended that central and local government departments in addition to non-departmental public bodies, the police, prison and immigration services would all be included. Undoubtedly, what has increased the importance of this duty beyond initial expectations, has been the decision to extend the application of section 6 to courts and tribunals. One consequence of this has been a marked change of emphasis in the way in which the British Courts approach their role of scrutinizing the actions of the executive with respect to human rights. They are now under an obligation to apply the principle of proportionality.

The European Court of Human Rights explained this concept in the Soering case when it said that the court must: ‘search for the fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s human rights’.

It is said that interference with a Convention right is only permissible if the degree of interference upon the right is proportionate to the legitimate aim being pursued as the reason for interfering with it. Thus, judges are now required to assess the protection of rights within the framework of the community interest. The legitimacy of the aim pursued by the legislation, or decision in question, must now be considered openly and expressly by the court in all cases that come before it.

This balancing of competing claims before the courts is, I believe, one of the most important changes to have occurred in the wake of the Human Rights Act. Prior to October 2000, judicial review of governmental decision-making or administrative action largely occurred where the decision complained of was so irrational that no rational body appraised of all the facts could possibly have made it.

Judicial Review under the Human Rights Act is significantly different from that test, as the courts are now able to direct their attention to the relative weight they consider ought properly to be accorded to the interests at issue. Questions of necessity and proportionality are paramount. Already this has lead to more intensive scrutiny of administrative decisions on human rights grounds, but at the same time, the courts have been anxious to stress that such scrutiny does not amount to review on the merits. How precisely the doctrine of judicial deference to the decisions of the executive in judicial review cases will develop remains to be seen but it is the subject of a lively academic debate.

The Human Rights Act and empowering the disadvantaged

I would like to turn now to look at the ways in which the Human Rights Act has impacted particularly on the lives of the disadvantaged in the United Kingdom. In the two and a half years since the Act was introduced, it has, I believe, been instrumental in empowering the disadvantaged to assert and to enforce their human rights. I would like to consider briefly just a few of the many areas in which this has occurred.

First, in what has come to be known as the "Prison Babies" case, two imprisoned mothers were able to mount a partially successful challenge to the Prison Service’s blanket rule under which it was compulsory for all babies to be removed from their mothers when they reach 18 months of age. The Court of Appeal reiterated that prisoners do not automatically lose their right to family life under Article 8 simply by virtue of imprisonment, and that to meet the test of proportionality (as well as fulfilling the objectives of the policy itself, namely the welfare of the child) the policy had to be applied with greater flexibility in order to ensure minimal interference with each individual child’s life. While it was accepted that the mother’s rights to family life were necessarily limited by reason of her detention, the interests of the child were paramount and accordingly a balancing exercise had to be undertaken with respect to each individual case in order to determine where the best interests of the child lay.

Another landmark case involving the Human Rights Act is that of Diane Blood, who has been able to challenge provisions of the Human Fertilisation and Embryology Act 1990 which prevented her from registering her deceased husband as the father of her children on their birth certificates. The decision of the High Court, by consent of Mrs Blood and the Health Secretary, to issue a Declaration of Incompatibility in respect of these sections, for breaching Article 8 of the ECHR, is likely to result in important changes in this area of the law. Accordingly it has the potential to benefit hundreds if not thousands of women across the country.

Again, in the case of Marian Hill, the Human Rights Act enabled a single mother and full time social worker, to challenge a refusal of benefits to help with her severely disabled son’s care so that she could return to work. The Benefits Agency had refused her application for childcare benefit because Ms Hill was unable to find a carer of the scheme’s designated formal category (namely a registered child minder) in her local area, although ironically she was able to find a registered foster carer. By virtue of the Human Rights Act, Ms Hill successfully argued that this decision breached her rights under Articles 8 and 14 of the ECHR and the decision was overturned.

Further, following R(H) v Mental Health Review Tribunal (North and East London Region), the first case in which a Declaration of Incompatibility was ever issued, the government has amended the Mental Health Act 1983 to put the burden of proof as to the justification or otherwise of continued detention for treatment under Art 5 ECHR (right to liberty) on the detaining authority, and not on the patient. Similarly, the advent of the Human Rights Act has led to the enhancement of the level of protection provided by the courts in cases where detained patients are subjected to compulsory treatment against their will, I am thinking here of cases involving for example cross-examination of medical witnesses in life-threatening situations, represents further progress for ensuring human rights.

The Human Rights Act has also been used to promote better treatment of juveniles in prison. In the recent decision of R (on the Application of the Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin), the Court decided that the policy guidance issued by the Secretary of State for the Home Department was wrong in law insofar as it stated that the Children Act 1989 did not apply to persons under 18 years of age in prison establishments. According to the Court, the Act did apply, subject to the necessary requirements of imprisonment.

Cases in Northern Ireland too illustrate how the Human Rights Act can be of assistance to the disadvantaged. In Re Grainne Martin's Application, the applicant was the mother of a 6 year old child who attended a private school, but who had been denied the right to travel to and from that school on a school bus which transported other children to a nearby, grant-aided school. While it was decided that the mother's application for judicial review had to be dismissed, Justice Kerr suggested that, if the Human Rights Act had been in force at the time of the application, the position may have been different because the policy to exclude the child from the bus transport was probably contrary to the European Convention. This illustrates that which I mentioned earlier - how the Human Rights Act involves a different test from judicial review, and how it can fill a "gap" in the protection of rights which previously existed under the process of judicial review.

In all these areas, the Human Rights Act has brought rights home, for disadvantaged groups. By requiring competing rights and their necessary limitations to be measured against each other in an open and explicit manner, the Act brings the issue of human rights to the forefront of legal judgments and ensures a continuous and open dialogue between the Westminster Parliament and the judiciary. It thereby helps focus the mind of the community on such issues, allowing them to pervade UK society at large - not just our courtrooms. The Act's existence and the concepts which underpin it are, I think, beginning to become increasingly familiar in our legal community as a whole. As our Lord Chief Justice has noted, this change of culture is the most important aspect of its introduction. That cultural change means that Convention rights will ultimately become ingrained into our society; they will, as Lord Rodger of Earlsferry noted when Lord Justice General, soak through and permeate our law.

Conclusion

So the Human Rights Act must be seen as doing more than merely protecting the specific rights which the Convention expresses. It is truly greater than the sum of its individual parts and must be seen as such; as an endorsement of the concepts of pluralism, tolerance and broadmindedness on which our society is founded. I am pleased to see that Lord Hope has alluded to this ideal, stating "in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules."

But there is more to be done if the government’s aim of creating a "culture of rights" is to be achieved. This as much a matter for education and good leadership as it is for laws and litigation. Courts should, if anything, be a measure of last resort. It would be far better if there were no need for people to go to court to vindicate their rights. Far better if people could rely on a culture of rights in which they respect others, and others, including public authorities, respect them. The success of the Human Rights Act will not ultimately be judged by an analysis of courts’ decisions, but an analysis of the state of British society and the manner in which we as UK citizens conduct our daily lives. As the British Institute of Human Rights pointed out recently, we cannot say we have a culture of rights in our society when our elderly people are still being fed their breakfasts on the commode as this is more convenient to care staff or when elderly people are put to bed at a time which suits their carers and not their own wishes. It is not until the idea of respect for the dignity of others as fellow human beings permeates all levels of society that we can truly claim to have a human rights culture.

In its recent report the Parliamentary Joint Committee on Human Rights warned that the key to the effective protection of rights lies in "creating a culture in public life in which these fundamental principles are seen as central to the design and delivery of policy, legislation and public services" and stated that in decision making and service delivery, central government, local authorities, schools, hospitals, police forces and other organs and agencies of the State should ensure full respect for the rights of all those involved. They found very little evidence that at this level a culture of respect for rights was developing. The parliamentary inquiry found the case for a human rights commission for England and Wales "compelling". The joint human rights committee of MPs and peers, whose report follows a two-year inquiry, says public bodies such as local councils and hospitals "do enough to avoid litigation and no more. They have not put respect for individuals' rights at the heart of their policy and practice. We have found widespread evidence of a lack of respect for the rights of those who use public services, especially the rights of those who are most vulnerable and in need of protection."

I welcome both the committee’s recommendation of an integrated body combining the human rights commission with the single equality body the Government has unveiled to enforce discrimination laws and I note that the LCD is seriously considering the matter. In England and Wales we should follow Northern Ireland's lead, for of course a Commission has existed here since March 1999 (and in the Republic since July 2001). Its stated aim is "to ensure that the human rights of everyone in Northern Ireland are fully and firmly protected in law, policy and practice". Your experience has shown how valuable such a Commission truly is to the development of a rights and responsibilities culture - and it is an entity which will only become more effective now that it has won the right to intervene, as a third party, in court and tribunal cases where that is thought to be appropriate.

Establishing a Commission in England and Wales will mean that we, like you, can really start to promote the human rights culture beyond the courts and into society at large.