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Human Rights analysis: What does the future hold for human rights in the UK? Stephanie Harrison QC at Garden Court Chambers warns repealing the Human Rights Act 1998 (HRA 1998) would be a seriously retrograde step, that would reverberate around the world.
What does the current legal framework for human rights look like in the UK?
The legal framework for protecting fundamental human rights contained in HRA 1998 achieved an unusual balance between incorporating international human rights standards with existing domestic constitutional arrangements. While requiring judges in HRA 1998, s 3 to take account of the European Convention on Human Rights (ECHR) and its jurisprudence in interpreting domestic law as far as possible, it also preserved Parliamentary sovereignty in respect of legislation that was incompatible with the ECHR.
HRA 1998, s 4 only gives judges the power to make a declaration of incompatibility, leaving Parliament to decide whether it will accept the ruling of the court and repeal or amend offending legislation. Such decisions remain ultimately political decisions made by our elected representatives. HRA 1998 is, therefore, a far more sophisticated legal instrument than an entrenched Bill of Rights reflecting the UK’s constitutional history and practice. HRA 1998 is also a secondary source of law to the traditions and fundamental principles of the English common law which has long protected core civil liberties and human rights that find expression in the codified ECHR. In many of the most important human rights cases it has been the common law at the forefront of the judge’s reasoning where breach of fundamental rights have been identified, particularly in the field of criminal law, fair trial and due process rights (see R v Davis  1 AC 1128; Al Rawi v Security Services  1 AC 531 and In Re Reilly  3 WLR 1020).
In this regard, the common law and Convention rights are seen to march hand-in-hand and inform each other, continuing the incremental development of common law which has always been flexible and able to adapt and reflect contemporary thinking. HRA 1998 has, however, been the key bulwark against some legislative measures which have most seriously affected fundamental rights, particularly in the field of anti-terrorism legislation and in respect of indefinite detention without trial of foreign terrorist suspects (see A (and others) v Secretary of State for the Home Department  2 AC 68 and A v UK (2009) 49 EHRR 29), the use of evidence obtained by torture, conditions of house arrest for terrorist suspects (see JJ (and others) v Secretary of State for the Home Department  1 AC 385) and expulsion of foreign nationals to the risk of torture and inhuman or degrading treatment (see Saadi v Italy (App no 37201/06) (2008) 24 BHRC 123).
There has been talk about repealing HRA 1998–what would change and who would most likely be affected?
Repeal of HRA 1998 would undoubtedly be highly damaging to our legal system after 14 years of legal jurisprudence taking the ECHR into account. The purpose of HRA 1998 was to integrate as far as possible the human rights principles and practice of the Convention into our domestic law and to provide individuals with a domestic remedy to avoid the long delays and protracted litigation involved with taking cases to the European Court of Human Rights (ECtHR). It will be virtually impossible to unravel those developments in the law which depend upon HRA 1998 and which have informed interpretation of domestic legislation and common law principles. This will have wide-ranging consequences at a time when access to justice and public funding for judicial review and other human rights cases have been either removed or dramatically reduced. There is a serious concern that, added to other radical changes taking place in the court system, this will seriously undermine and compromise the administration of justice in the UK.
Those most adversely affected by repeal of HRA 1998 will be vulnerable groups such as migrants and refugees and/or unpopular minorities such as terrorist suspects, offenders and prisoners. The rights of such minorities will be much less secure without HRA 1998 given attacks on the basic protections currently afforded to such groups.
It would mark a significant shift in the constitutional arrangements between Parliament, the executive and the judiciary, with the balance of power moving in favour of the executive. There is a likelihood that the law could be seriously undermined, in particular the foundation principle of equality before the law. The current law, as interpreted and applied by judges, after careful consideration of the principle and practice of international human rights law, will be liable to be overturned by executive dictat in cases concerned with administrative discretion, and the judges’ supervisory and advisory role under HRA 1998, s 4 will be lost. It is unclear whether our courts would be expressly prevented from taking into account ECHR jurisprudence when considering cases involving fundamental rights as they are required to do now under HRA 1998, s 3. It seems absurd that they would or could be.
Would repealing HRA 1998 affect the UK’s standing in the international community?
It will be greeted with disbelief by most mature modern liberal democratic societies, and dismay within Europe itself as a green light to some of the more repressive regimes within the Council of Europe to themselves withdraw from the ECHR. The abandonment of those principles by a leading democratic nation, whose lawyers and representatives were in large measure responsible for the drawing up of the ECHR after the end of the Second World War and the defeat of fascism, will reverberate around the world as a seriously retrograde step after the decades of endeavour to entrench core universal rights for all human beings as the foundation for a civilised society.
What is the general trend in relation to human rights in the UK? Is less importance being placed on legislation now than in the past?
There has been increasing hostility towards the ECHR and HRA 1998 under the current government, within the Conservative Party and in particular from the current Home Secretary and the Lord Chancellor. This is in a context where a part of the press is against the notion that unpopular individuals are entitled to core basic human rights. It reflects a potent mix of authoritarianism, xenophobia and political expediency that dictates the debate around HRA 1998.
A sober and sensible debate would, however, reflect the facts set out earlier that the principles of the ECHR are not an alien imposition on our domestic law. Much of what it protects is already entrenched in the common law. HRA 1998 does act as long-stop against repressive legislation (that could override the long-established values of the common law). But, ultimately, Parliament is supreme and can maintain legislation that is not compatible with the ECHR if it chose to do so. There is no fundamental intrusion on the sovereignty of the UK. HRA 1998 should not be a political football in the wider debates about membership of the European Union.
This above all is what motivates anti-HRA 1998 sentiment because in that discourse there are groups and individuals deemed undeserving of respect for their fundamental rights. It seeks to sidestep what has to be the defining feature of fundamental human rights law, that such basic protections are universal and inalienable irrespective of the conduct or character of the person and how they are perceived by the majority.
In this context HRA 1998 remains of crucial importance because it reflects the central tenant of the rule of law, namely equal treatment. This core principle of our system of justice was very recently evoked by the Divisional Court in litigation brought to challenge the provision of secondary legislation that imposed 12-months of lawful residence as a condition for entitlement to public funding for those with a serious legal case that would not otherwise be funded (see R (Public Law Project) v Secretary of State for Justice  EWHC 2365 (Admin)). The court endorsed a principle of the common law first elaborated as long ago as 1772 in Sommersetts case (Sommersett v Stewart (1772) 98 ER 499) concerning the false imprisonment of an African slave: ‘those subject to the law have the protection of the law’. The principle was restated by Lord Scarman more than 200 years later in R v Secretary of State for the Home Dept, ex p Khawaja  AC 74.
Immigration status is irrelevant to the protection of the right to liberty and to access to the court. It would be entirely wrong to see the current government’s policy as against the imposition of alien laws from Strasbourg–what is really at stake and under attack are the core principles of British constitutional law and the foundations of British justice which have been in place for centuries.
What do human rights cases over the past year tell us about the direction the UK is taking?
The most important human rights case of the past year was the inquest into the death of Jimmy Mubenga and the finding by the jury that he had been unlawfully killed by escorts privately contracted by the Home Office to enforce removals from the UK. Mr Mubenga was held in a form of restraint on the aeroplane which caused him to suffocate. It transpired during the inquest that the escorts employed by G4S had a financial incentive to secure expulsion of individuals and that a number of them held overtly racist views. The coroner in a detailed and extensive rule 43 report identified ‘pervasive racism’ which was ‘endemic’ and a culture of dehumanisation in respect of the attitude to those subject to immigration control to whom those officials owed a duty of care.
In graphic terms this case shows why this is the time to strengthen, not weaken, mechanisms for enforcement of minimum human rights standards.
This case can be seen in a context where since 2011 the High Court in judicial review has found that the Home Office has subjected vulnerable detainees with serious mental illness to unlawful detention and conditions of detention that constituted inhuman and degrading treatment in breach of the ECHR, art 3 on no less than six occasions:
- R (on the application of S) v Secretary of State for the Home Department  EWHC 2120 (Admin),  All ER (D) 16 (Sep)
- R (on the application of BA) v Secretary of State for the Home Dept  EWHC 2748 (Admin),  All ER (D) 219 (Oct)
- R (on the application of HA (Nigeria)) v Secretary of State for the Home Department  EWHC 979 (Admin),  All ER (D) 76 (Apr)
- R (on the application of D) v Secretary of State for Home Department  EWHC 2501 (Admin) ,  All ER (D) 139 (Aug)
- R (on the application of S) v Secretary of State for the Home Department  EWHC 50 (Admin),  All ER (D) 18 (Feb)
- R (on the application of MD) v Secretary Of State For The Home Department  EWHC 2249 (Admin),  All ER (D) 114 (Jul)
Reports and recent elections show that nationalism, racism and anti-immigrant movements are on the rise throughout Europe–what does this mean for human rights?
I reiterate my comments regarding the general trend. These movements represent the biggest and most concerted threat to human rights principles and practice of respect for basic universal rights since the defeat of fascism in 1945. The magnitude of the threat, however, is in the response from the mainstream parties which is not to stand strong with those principles but to appease it and in some cases to accommodate and adopt its mantel for their own political advantage. Attacks on the ECHR and HRA 1998 play into the hands of those with extremist agendas. Scapegoating vulnerable and unpopular minorities in times of economic austerity in particular may pay a short-term political dividend but corrodes our democracy and respect for the rights of all, not just those directly targeted. It is to my mind a betrayal of those who not only said ‘never again’ to the ghettos, camps and carnage wrought by racism and fascism but sought to achieve that through enshrining principles based on equal worth and treatment. An important expression of which was the entrenchment of universal minimum rights applicable to all. Moreover, rights backed up by a guarantee of surrogate international protection for those discriminatorily denied those minimum rights by their own country of nationality through the right to seek asylum in art 14 of the Universal Declaration of Human Rights.
The government said it will not always follow Strasbourg’s decisions–what does that tell us about the approach to, and future of, human rights in the UK?
The judgments of the Strasbourg Court are binding on the UK. They must be followed. Governments can’t pick and chose whether to abide by the rulings of this court. Such a notion is plainly antithetical to the rule of law and any effective justice system. It is a shocking proposition for any modern democracy. Other states could follow suit and the whole system will be undermined.
What are your predictions for the future?
One can make no sensible predictions about the future if justice policy pursued by the politicians is dictated by short-term political gain.
The radical changes to our system of justice and access to public funding in the past 12 months cannot bode well for the rule of law and respect for fundamental human rights. My fear is that at a time when remaining resolutely behind the principles of universal minimum rights is most needed to ensure the lessons learned (at such cost), they are most under attack and the mechanisms for enforcement of them are not being strengthened but weakened and even removed.
Stephanie Harrison QC practises predominantly in public and administrative law with a strong emphasis on civil liberties and anti-discrimination. She has expertise in all areas of immigration and asylum law and practice. The use of international human rights law including the ECHR is integral to her practice and she has considerable expertise in this area as well as experience in applications direct to the ECtHR. Stephanie won the Liberty Human Rights Lawyer of the Year Award 2013 for her work as an advocate and for her commitment to progressing the rights of immigrants and asylum seekers and contesting oppressive anti-terrorism measures.
Interviewed by Kate Beaumont.