In the last few days we have had two lectures directly relevant to the fate of the Human Rights Act. One in support by Professor Philippe Sands, and one against by Professor John Finnis (although the Finnis lecture is centrally about judicial responsibility, the latter half returns to criticisms of incorporating the European Convention that he first made thirty years ago).
Both should be read, although the latter is the more impressive (regardless of whether you agree with it or not). I shall return to Professor Finnis’ arguments in a later post, but here I wish to respond to, and largely reject, the arguments employed by Professor Sands.
The lecture is divided into three parts, past, present and future.
The presented potted history of Human Rights in Europe and the United Kingdom (“Where We Have Come from”) is both selective and misleading. It is also a tale that is often told in the way he does, and so needs to be addressed.
The story presented is that the pan-European human rights model came as a reaction to help safeguard the people of Europe from the horrors of the 1930s and 40s. The principal hero is Hersch Lauterpacht (an undoubtedly great and important figure). His book An International Bill of the Rights of Man is said to have provided the intellectual underpinnings for the Convention that was to follow, under the political leadership of Winston Churchill with British draftsmen to the fore. The Convention was ratified by the UK in 1951, coming into force in 1953, from which time it is claimed the aggrieved United Kingdom citizen could bring claims under the Convention in Strasbourg where the Council of Europe has its home. Finally in 1998 Parliament passed the Human Rights Act, fulfilling the intentions of the original visionaries.
This story omits, or confuses, two things. First, the idea of rights that citizens have against the state to restrain the unfettered exercise of state power was not a new one, nor particularly European. The most significant early example of a state whose constitution adopted this approach was the United States. In the inter-war period a large majority of European states had written constitutions which similarly adopted such an approach, although the list of rights in their constitutions much more closely resembled the list in modern day human rights conventions than does the eighteenth century version of Jefferson and Madison.
The outlier in this regard was the United Kingdom with its doctrine of Parliamentary sovereignty. (Australia, with its constitution of 1900 and geographical situation is still an outlier today). A longstanding criticism by opponents of Bills of Rights is that whether a state does respect human rights is a quite separate question from whether such rights should be incorporated into constitutional rules. The United Kingdom did not descend in the 1930s into barbarity, whilst states possessing impeccable Bills of Rights, in particular the Soviet Union and the Weimar Republic (the constitution of which was technically in force until 1945) both of which had rules in place that on their face appeared beyond reproach, did.
In a less dramatic way, the lack of a necessary connection between what the law requires and the actual real world behaviour of the government and its officials can be looked at from the lack of empirical evidence for any impact on the latter as a result of the Human Rights Act. If the HRA did ensure that the UK government became more compliant with the norms set out in the HRA, one would expect the number of successful claims before the Strasbourg court to have fallen since 2000. There seems to be little or no evidence of this. (The one exception is inevitably Art 13, which requires member states to give redress before their own courts for breaches of Convention rights. It is however, hardly a powerful freestanding argument for the human rights regime that its enforcement ensures that it is enforced.)
Nor can it be claimed that incorporating such rights to restrain the sovereignty of signatory states into an international convention was a particular novel, or even European, idea. Such a regime had already not only been contemplated, but brought into being in Central America before the First World War.
The other omission concerns the history of UK human rights from 1953-2000. Professor Sands states (at pp 16-17)
The European Convention was adopted in 1950, ratified by the UK in 1951, and came into force in September 1953. It was not incorporated into our domestic law, which meant that it could not be invoked before our domestic courts. An aggrieved citizen or inhabitant of the United Kingdom would have to take claims under the Convention to Strasbourg, where the Council of Europe has its home. In 1966 the UK opted to accept the right of individual complaint to the European Commission of Human Rights.
There are two errors here.
First, from 1953-1966 individuals had no method of bringing any claim in Strasbourg. Until 1966 only other member states could assert a claim against the UK, as Greece did over Cyprus in 1956-7. The complaint Greece brought was before the European Commission of Human Rights, to which the UK was subject from 1954, and which was abolished in 1998.
Further, during the early period of its life the Convention was an essentially political or aspirational document so far as the UK was concerned, which is one reason why it was so uncontroversial. In 1966 Wilson’s Labour government acceded to the jurisdiction of the European Court of Human Rights, not as Professor Sands puzzling states the Commission. At the time it was thought that the potential for large numbers of claims before that court was remote. Indeed the first claim against the UK was only brought in 1975, and before 1981 there were only five cases.
The Convention has only proved a significant inconvenience for the UK state over the last thirty years, and as time has passed the number of claims has ballooned. The idea that the legalistic world we now live in was that originally contemplated in 1953 by Churchill or Maxwell-Fyfe (the only British lawyer of significance involved in drafting the Convention) is simply untrue.
Professor Sands argues that there are three complaints made about the Strasbourg Court’s approach to the European Convention. Unfortunately, he doesn’t attribute these complaints to anyone. They do not bear a close relation to the complaints made by, for example, either Professor Finnis or other prominent critics such as Justice Dyson Heydon.
The first complaint that he seeks to address is that the court has given the Convention a greater scope than the drafters ever intended, and this is indeed one of the criticisms that Professor Finnis makes.
Professor Sands argues that rights must be interpreted according to the background conventional morality of society. As society’s values change, so must the interpretation of Convention rights. Just as what constituted ‘cruel and unusual punishment’ for the framers of the Eighth Amendment to the United States may not be the same as we today would accept, so the meaning of the rights in the Convention may also change overtime.
This argument does not work. The primary reason for its failure is that it is inconsistent with Professor Sands’ major premise, implicit in the name ‘human rights’, that the justification for them is “the idea that every human being has basic, irreducible human rights.” This is a claim about true, not conventional, morality. It is a claim that all persons are the possessors of such rights in all times and places. If we accept this claim, then they are unvarying. If people have a human right to be free to marry people of the same sex, then that cannot be dependent upon the conventional morality of where they happen to be at any particular time.
This leads to a further problem with the Convention as interpreted by the Court, well captured by the decision in Dudgeon v United Kingdom that Professor Sands seeks to rely upon. Mr Dudgeon was gay, and legislation in Northern Ireland made certain sexual acts between consenting men a criminal offence. Although these offences had been repealed in the rest of the United Kingdom, they still applied in Northern Ireland.
Dudgeon relied upon Article 8, which provides:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The United Kingdom relied upon the highlighted words to argue that morality in Northern Ireland required the maintenance of the legislation Dudgeon complained of there. “Morals” in article 8 (and other articles) has been interpreted by the ECtHR to mean conventional morals, and not true morality independent of any community. A majority concluded that conventional morality no longer required any such offences, with a dissent from the Irish Judge Walsh.
The difficulty with this is how any of the judges were in a position to assess this question. Conventional morality is a matter of fact. What evidence could the majority point to to convince themselves that they, and not the United Kingdom legislature, were in a better position to assess this fact? If conventional European morality swung back away from the liberal position (which I share) that it is monstrous barbarity to criminalise homosexual acts between consenting adults, would it be ok to then re-criminalise this behaviour? Why was conventional morality in, say, Belgium thought relevant to conventional morality in Northern Ireland?
The second ‘common complaint’ that Professor Sands identifies is that the United Kingdom courts have a subordinate relation to the Strasbourg court. As Professor Sands notes however, this is just wrong. The United Kingdom courts are not compelled by the Human Rights Act to follow the European Court of Human Rights in the interpretation of Convention Rights and have on occasion flatly refused to do so.
It is not however correct to say that “[b]efore  the Convention was an unincorporated treaty that produced no legal effects, as such, in the UK law, and courts could not take into account judgments of the Strasbourg Court” . The United Kingdom courts have always sought to give judgments in a way that ensures that the United Kingdom is not placed in breach of international law. Before the coming into force of the Human Rights Act this entailed that they attempted to ensure that the United Kingdom did not violate the European Convention on Human Rights, and that our law was compatible with decisions of the European Court of Human Rights. Murray Hunt wrote a book (which was almost immediately obsolete) on how the United Kingdom courts had taken into account the Strasbourg court’s judgments prior to the Human Rights Act.
The third criticism Professor Sands identifies as having been made by someone is that human rights law is an “an alien species that taints the purity of the common law.” The most obvious riposte to this kind of argument would be that it is high-sounding nationalist nonsense that nobody should take seriously. Why on earth should anyone worry about the purity of the common law?
Unfortunately, Professor Sands does not take this option, but instead engages in some romanticism about the common law of his own. So, we are told that the common law has “long proved to be a bountiful source of fundamental rights.” This is not very persuasive. The common law has no fundamental restrictions on Parliamentary sovereignty. The common law cannot prevent Parliament from abolishing, say, marriage or freedom of assembly. Those who wish to defend the Human Rights Act should have the courage of their convictions, and not seek to argue that it is all to be found hidden in the common law or (even worse) Magna Carta.
Professor Sands presents three reasons for retaining the Human Rights Act and against its replacement by a ‘British Bill of Rights’. None are compelling.
First it is said that there is popular support in favour of the status quo. It must be very doubtful indeed however whether the vast majority of people have even the vaguest idea of what the Human Rights Act does.
Second it is said that the devolution settlement bars the way to any change. I have written about my doubts regarding this claim elsewhere.
Third, it is said that the abolition of the Human Rights Act would bring to an end the dialogue between the UK courts and the ECtHR, and thereby end the influence we have over that court, whose judgments would still be binding on the United Kingdom as a matter of international law. Although I would not accept that the repeal of the Human Rights Act would end the necessity of UK courts to consider ECtHR decisions, no doubt the need to do so would be much diminished. As a matter of brute politics however, it may be doubted whether this is much of a concern. The number of occasions on which the United Kingdom courts have through dialogue changed the opinion of the ECtHR seems to be confined to an example of one.
The first reason for the Act, if it is defensible, must be that it is substantively a good thing in furthering justice. This is an issue to which I shall return in my next post, and the answer is not self evident. If we are going to persuade the doubters as to the benefits of the Human Rights Act it is this, and the actual arguments of those who disagree, with which we must engage.