A National Charter of Rights:Some Reflections from the United Kingdom

I have been asked to give an assessment of the British Human Rights Act 1998 (HRA), now in its eighth year, and to suggest some lessons that Australia might draw from the British experience.  Inevitably, the latter leads one to focus on the more negative aspects of our experience, so I want to start with the good stuff before dwelling at greater length on the problems that you might want to avoid. The Act has led to improved scrutiny of deaths in custody and to changes in the release of mandatory life prisoners – decisions on release are now made by judges and not politicians.  Asylum seekers have successfully challenged changes to benefits laws that would have left them destitute.  Laws have been introduced to allow transgendered people to have their ‘new’ gender legally recognised and to allow gay men and lesbians to marry in all but name (the latter was not in response to a specific HRA case but I have no doubt that the decision to introduce the legislation was made in part to pre-empt HRA challenges).  Our courts are now developing a law of privacy, seeking to achieve a balance between an individual’s rights and freedom of expression of the press.  More broadly, matters that would not previously have been justiciable can now be brought before the courts.  We have a new language to articulate rights.

The high point for me and my colleagues at Liberty was the House of Lords’ ruling in December 2004 in A & Ors v Secretary of State for the Home Department [2004] UKHL 56.  The Government had derogated from article 5 of the European Convention on Human Rights (the right to liberty) in order that Parliament could pass a law to permit the indefinite detention of non-nationals suspected of international terrorism.  The House of Lords struck the derogation down as overbroad and declared the legislation incompatible with the Convention.  In the face of the Lords’ condemnation the Government did not seek to renew the legislation.

This is an example of the constitutional balance in the HRA working well.  To preserve parliamentary sovereignty the HRA did not give the courts the power to strike down primary legislation; all the courts can do is make declarations of incompatibility.  The courts have used the power sparingly and Government and Parliament have acted or are acting on all such declarations.  The niceties of constitutional theory are being observed.  Moreover, a scheme that does not depend on the blunt instrument of a strike-down allows incompatibilities to be remedied in a considered fashion. Now I come to three things that have not worked so well.

First, there is the issue of which bodies are directly bound by the HRA.  The HRA imposes an obligation on public authorities to act compatibly with the Convention but does not define what a public authority is save, crucially, to say that a body will be a public authority if it is performing ‘functions of a public nature’.  The courts have taken a very restrictive approach to this issue.  It came to a head in a case concerning an elderly woman who was placed in a privately run care home by a local authority acting pursuant to its statutory duty to provide her with care (YL v Birmingham City Council & Ors [2007] UKHL 27).  The House of Lords held, by a narrow margin, that the care home was not a public authority and owed the woman no duties under the HRA.  Legislation is now being passed to overturn this ruling.  While this may deal with the problem in relation to care homes, the courts’ restrictive approach will doubtless cause problems elsewhere.

A second problem is that the HRA has done little to change the courts’ traditional reluctance to trespass in the social policy sphere.  In large part this is due to the European Convention itself: it is concerned with civil and political rights, not economic and social ones.  Two examples of the courts’ continuing reluctance come to mind.  Firstly, the courts have declared our system of housing law broadly compatible with the Convention even though, in some circumstances, a court may be required to make a possession order against a tenant without any consideration of the tenant’s individual circumstances or any balancing of the tenant’s interests with those of the landlord.  A recent decision of the European Court of Human Rights in Strasbourg suggests that this will breach article 8 (right to respect for a person’s home: see McCann v United Kingdom [2008] ECHR 19009/04 (13 May 2008)).  Secondly, the courts have held that the right to a fair trial does not extend to the procedure whereby a homeless person can seek a review of a decision on his or her application for housing.  The fact that the primary review is carried out by an officer of the local authority that would have to provide the housing and that there is no right to a full merits review by a court or other independent body did not breach article 6.  According to the courts, article 6 should not be allowed to extend into administrative decision-making.

The final issue is one that stems from the relationship of our domestic courts to Strasbourg.  The courts are enjoined by s 2 of the HRA to take account of Strasbourg case law.  When the Bill was before Parliament, the hope was expressed by Lord Lester QC that the British courts would be able to give a lead to the Strasbourg court in developing its jurisprudence; Strasbourg’s interpretation of the Convention would be a floor not a ceiling.  Sadly, this is not how our courts have looked at it.  Rather, the House of Lords has made it clear that the European Court of Human Rights is the primary body charged with the interpretation of the Convention and that the English courts must not overreach it.  Hopes that we might develop a distinct human rights jurisprudence drawing on English common law have been shattered.

Before concluding I want to take off my lawyer’s hat (as an English solicitor I don’t get to wear a wig) to consider the HRA’s standing more generally.  There is visceral hostility to the HRA in some sections of the media.  Attempts by perceived ‘undesirables’ to use the HRA, however unmeritorious the claim, are reported as if they were successful.  Faced with this barrage of criticism and smarting from some court decisions with which they no doubt genuinely disagree (particularly on terrorism-related issues), ministers in the very government that introduced the HRA have failed to support it and have even in some cases expressed regret at having passed it.  Both main parties are now working on proposals for British bills of rights even though both must realise that any replacement for the HRA could not guarantee lesser rights than under the Convention.

It is difficult to know why there is such hostility towards the HRA.  It may be that it is seen as a European imposition.  More broadly, it may be that the problem lies in way that it was enacted.  We chose to adopt and incorporate an existing human rights instrument as our bill or rights.  There was no public dialogue on the content of the rights.  Further, it was pushed through Parliament by a triumphant new government, albeit with muted support from the recently defeated Tories.  Perhaps if there had been full consultation on the content of the HRA and it had been passed with the full engagement of all main political parties, the HRA would be on a much surer footing now.

James Welch is the Legal Director of Liberty, a leading UK NGO which aims to protect civil liberties and promote human rights.