Monday 9 December 2013

Lady Hale on Human Rights law ~ her lecture at Warwick

"The British used to be proud of their record on human rights. We are, after all, the land of the Magna Carta, signed by King John at Runnymede in 1215."

"The idea that the citizen might have rights which he could assert against the State was unknown to us"

"The puzzle was how to combine enforceable convention rights with the sovereignty of the UK Parliament"

" ... there are other politicians, some of them now in government, who have identified the Human Rights Act as the problem"  - Lady Hale. 

On 28th November, Lady Hale (Deputy  President of the Supreme Court) delivered the Warwick Law Lecture 2013 (PDF) entitled "What’s the point of human rights?"  The lecture looked at how the European Convention on Human Rights has been developed by decisions of the European Court of Human Rights (E Ct HR) and how the House of Lords and now the Supreme Court have responded to the challenges set by the Human Rights Act 1998.  Without doubt,
it is a very good overview of the system of rights protection in the UK at the present time.  The lecture is replete with examples from decided cases and, as such, well worthy of study by anyone interested in the law.

Lady Hale began by saying that "The British used to be proud of their record on human rights" and
"so it is not surprising that after the Second World War British Conservatives enthusiastically promoted the idea of a European Convention on Human Rights, to combat the right wing totalitarianism of the recent past in western Europe and the left wing totalitarianism of the then present in the east. They took a leading part in its drafting. They almost certainly thought that its provisions reflected the then existing state of United Kingdom law. They were probably right about that. But as it was originally only a treaty between states which only states could enforce, it did not matter very much if they were wrong. But then in 1966 the United Kingdom recognised the right of individuals to petition the European Court of Human Rights if they thought that their rights had been violated. The expectations of the drafters were soon confounded."

According to Lady Hale, they had reckoned without two things: (1) the ingenuity of British and Irish lawyers and (2) the "evolutive" approach to the convention as developed in cases at Strasbourg: Golder v UK; Tyrer v UK; Marckz v Belgium ad Airey v Ireland.

Those cases established 3 principles:
  •  a purposive rather than literal approach to interpretation of the language of the convention; 
  •  that the convention is a living instrument (Tyrer v UK); 
  •  the protected rights had to be 'practical and effective' as opposed to 'theoretical or illusory' (Airey v Ireland).  
Those principles led to substantive developments such as Article 2 (Right to Life) requiring a duty on States to investigate where State agencies might be implicated in a death.  States came to have positive duties to protect rights.

"The idea that the citizen might have rights which he could assert against the State was unknown to us."  "The puzzle was how to combine enforceable convention rights with the sovereignty of the UK Parliament."  The Human Rights Act 1998 was an ingenious solution but Lady Hale went on to discuss four tensions still present.  These relate to:

(a) Enforcement; 

(b) the phrase Take into account in HRA 98 section 2; 

(c) The words "read and give effect" in section 3 of the HRA 98; and 

(d) Declarations of Incompatibility under section 4 of the HRA 98.  

Enforcement of Convention Rights:

The HRA 98 s.6 makes it unlawful for a public authority to act incompatibly with convention rights BUT many rights involved balancing rights of individuals against the interests of other individuals , groups or the general public.  Lady Hale illustrates this by references to Manchester City Council v Peacock [2010] UKSC 45 and R (SB) v Governors of Denbigh High School [2006] UKHL 15.

Another difficulty is the extent to which rights against the State are enforceable against private entities.  This is illustrated by the development of the existing law of breach of confidence so as to balance Article 8 privacy rights of individuals with Article 10 freedom of speech for the media.  "Thus a newspaper should not have published a photograph of supermodel Naomi Campbell leaving a narcotics anonymous meeting" - Campbell v MGN Ltd [2004] UKHL 22.

A third difficulty is the standard of review for the human rights aspects of the actions of public authorities.  Lady Hale had not entertained doubts that the test in Associated Picture Houses v Wednesbury Council [1948] 1 KB 223 was NOT the right test.  In relation to human rights, the court had to decide for itself whether what had been done was, or was not, compatible.  Sometimes, it may be thought that a decision-maker was better placed than the court to weigh competing interests.  In R (Quila) v Home Secretary [2011] UKSC 45, Lord Brown had dissented on this basis.

Taking into account the Strasbourg jurisprudence:

QUILA also illustrates the problematic area of taking into account the matters mentioned in HRA 98 section 2 (including judgments of the E Ct HR).  Lady Hale pointed out that - "We do not have to follow it if we do not agree with it. However, as a common law country, we all love working with case law. Counsel have a tendency to treat Strasbourg case law as if it were the case law of our courts."  This was "odd" because Strasbourg case law is not binding precedent but statement of general principle leaving "plenty of wriggle room for the future."  Nevertheless, one of the principal objects of the HRA 98 was to try to prevent cases going to Strasbourg - [remember "Bringing Rights Home"] - and so the House of Lords decided that where there was a ‘clear and constant’ line of jurisprudence, especially at Grand Chamber level, we should generally follow it.  This principle was applied recently in the prisoner voting case of Chester v Secretary of State for Justice [2013] UKSC 63.  In Chester, the UKSC declined to accept the Attorney-General's invitation to decide against the E Ct HR Grand Chamber decisions in Hirst No.2 v UK (2006) 42 EHRR 41 and Scoppola v Italy (2013) 56 EHRR 19.  In Chester, it was also noted that Strasbourg decisions might not be followed if they were inconsistent with some fundamental substantive or procedural aspect of our law.

Clearly, when deciding Chester, the UKSC knew the stance already taken by Strasbourg in the prisoner voting cases.  However, Lady Hale next asked:

"But what about the cases where we do not know what Strasbourg would say or where, as the jurisprudence currently stands, he would lose? In Ullah, as is well-known, Lord Bingham
enunciated what has since been termed the ‘mirror’ principle: ‘The duty of national courts is to
keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. 

In Al-Skeini v Secretary of State for Defence [2007] UKHL 26, Lord Brown had said: ‘no less, but certainly no more’.  Lady Hale said that. at the time. she agreed with him but no longer did so.  [Is there any real difference between Lord Bingham's phrase and its "play on words reversal" by Lord Brown?  On this see para 106 in the Al-Skeini case].  Lady Hale asked: Why no more?  There was good reason to believe that Parliament had, in the HRA 98, asked the courts to develop human rights.

The preceding white paper, for example, had said that incorporation would enable the British judges ‘to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe’.  A distinction could be drawn between UK courts working out their own answer to a problem which has not yet arisen at Strasbourg and deliberately ignoring a line which Strasbourg has "drawn in the sand."

Lady Hale then referred to - Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 (and see previous post) where the UKSC had held that there was a positive obligation to protect the life of a mentally ill young woman who had been admitted to hospital informally because of attempts to take her own life.  The Rabone decision went beyond what Strasbourg had held at the time but, in a different case, Strasbourg later accepted the decision.

The Al-Skeini case demonstrated Strasbourg deciding to go further than the position adopted by the UKSC.  The Supreme Court had applied the HRA 98 on a strictly gerographical basis but Strasbourg considered that the convention extended to Basra (Iraq) at a time when UK was exercising control over the territory. Lady Hale remarked:  I don’t think we are obliged to anticipate some of the more surprising or adventurous things that Strasbourg may do."

The lecture went on to note that Jack Straw and Lord Irvine (both instrumental in getting the HRA 98 enacted) had criticised the mirror principle.  However, her Ladyship asked "whether, in reality the independent line which past and present Government Ministers would like us to take is not to follow what they would regard as Strasbourg’s more adventurous decisions."  

[Whatever their present views, Mr Straw and Lord Irvine were enthusiasts in their promotion of the HRA]

Lastly, for this section of the speech, Lady Hale noted that "there are other politicians, some of them now in government, who have identified the Human Rights Act as the problem and pledged to repeal it if the Conservative party has a majority at the next election."

Read and give effect:

Lady Hale turned to the relationship which the HRA 98 creates "between our sovereign Parliament and the courts."  HRA 98 s3 requires legislation, so far as it is possible to do so, to be read and given effect in
a way which is compatible with the Convention rights.  The courts had developed a broad view as to what was possible.  As long as an interpretation was not contrary to the scheme or essential principles of the legislation, words could be read in or read out, or their meaning elaborated, so as both to be consistent with convention rights and go with the grain of the legislation.  This would apply to future as well as past legislation. According to Lady Hale, the HRA 98 had therefore modified the power of Parliament to pass incompatible legislation.

Here, Lady Hale did not mention the provision in the HRA 98 section 19 for a Minister to make a statement of compatibility.  This signals that the legislation was intended to be compatible.

Lady Hale then proceeded to comment that the interpretation techniques had not attracted much criticism from politicians.  "Ministers, it would appear, would usually prefer us to solve an incompatibility problem for them rather than make the declaration of incompatibility."

Lady Hale offered an illustration of this by reference to the control order legislation which came before the House of Lords in Home Secretary v AF (No 3) [2009] UKHL 28.

Declarations of Incompatibility:

The HRA 98 section 4 permits these but in deciding whether an Act (especially a post HRA98 Act) is incompatible raises the issue of respect for decisions of "our democratically elected representatives more acutely than deciding whether the actions of public authorities and government Ministers are incompatible."    Lady Hale then discusses two cases: Animal Defenders International v Secretary of State for Culture, Media and Sport [2008] UKHL 15 and R (Countryside Alliance) v Attorney General [2007] UKHL 52.

When there is a declaration of incompatibility the fast track amendment process may be used (HRA98 s10) or an Act passed to amend the law or the government might do nothing.  "Doing nothing" prompted some discussion of prisoner voting though Lady Hale noted that a Parliamentary committee is considering a draft bill.  [One option in the draft Bill is to keep the law as it is].  This led her to discuss what she describes as "my small rebellion against Strasbourg" in the Chester case.  In that case itself, her Ladyship had expressed little sympathy for Mr Chester and Mr McGeogh.  They were serving sentences for murder.  In the lecture she said:

"... usually, Strasbourg does not grant remedies in abstract, divorced from any consideration of how the rights of the individual before the court have actually been violated. They did so in the Hirst case, despite a strong dissent including the then President of the Court and his immediate successor. I thought that we should follow the normal and sensible practice of the Court and refuse to grant any of the remedies available to us, including a declaration of incompatibility, to an individual whose own rights had not been violated, other than by being subject to a law which might violate the rights of others."

There was, of course, no chance that Parliament would ever grant voting rights to ALL prisoners such as those convicted of murder.  [The UKSC also refused to make a declaration of incompatibility in Chester because one had already been made in the Scottish case of Smith v Scott [2007] CSIH 49].

The future?

Lady Hale referred to the opposition against the HRA 98.  The Home Secretary (Theresa May) and the Justice Secretary (Chris Grayling) have been particularly vocal about human rights matters.  (Their departmental responsibilities certainly engage human rights a great deal).  Lady Hale then referred to the Commission for a British Bill of Rights.  She concluded by saying that the range of options is not limited to doing nothing or having a bigger and better UK Bill of Rights.  "There are clearly some who are willing to contemplate repealing the Act and replacing it with nothing."  

"That would take us back to the constitutional position before the Act was passed, but it would raise all sorts of interesting questions about the effect of the decisions which have been made during the period while the Act was in force and whether the common law would now embrace many of the rights which were established during that time." 

Was there any fundamental right referred to in the Act which was not given reasonable protection in domestic law before 2000.  Lady Hale said: "I hope that I have illustrated how and why the answer is ‘yes’ and that there is indeed a point to the Human Rights Act."

Yet again, I write as a concerned citizen.  In respectful agreement with Lady Hale, I say
There IS a point to the Human Rights Act 1998.  

"The idea that the citizen might have rights which he could assert against the State was
 unknown to us." 

Is that a position to which we would wish to return?

The Act has proved itself to have immense value to our rights protection and we must beware of those siren voices arguing that something else may well be better and the strident voices pressing for a retreat from human rights protection with the result that power is balanced more in the State's favour.  Somewhere in between lies the voice of calm.  Let it prevail.

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