Here I turn to some arguments made by Professor John Finnis against the Human Rights Act. His recent lecture is centrally about judicial responsibility, but in the second half he returns to arguments he made 30 years ago against the incorporation of the European Convention on Human Rights.
There have already been two academic replies, by Professor Elliott and Professor Webber. Being critical, I would suggest that one of the strengths of Finnis’ lecture is that he deals, sometimes at length, with examples taken from the law, whereas the responses have been at a high level of generality.
The ad hominem issue
To non-specialists, Professor Finnis is probably best known as a Catholic who defends ethical positions on abortion, contraception and homosexuality that are out of line with our current liberal consensus (a consensus that I share). This conservatism can lead some to fail to engage with what he says. This is a mistake.
Professor Finnis is also one of the two or three most important legal philosophers alive in the English speaking world. He is also an acute lawyer (being a legal philosopher, perhaps surprisingly, doesn’t necessarily entail any knowledge of law).
Politics v Principle
One argument in favour of Bills of Rights in general, and the Human Rights Act in particular, is that the legislature is the natural forum for resolving questions of the pursuit of the common good, the courts for the protection of individuals against the majority.
It is true that courts are peculiarly ill-suited to resolve what may be broadly called ‘political’ questions of the general welfare. Judges merely have before them the parties to individual disputes and the arguments they choose to present. Judges are generally not very good at determining which result will turn out to be economically optimal. They lack the democratic mandate to legislate for all of us. Legislatures, for all their imperfections, seem to be far better as forums for the resolution of issues of general welfare.
As Finnis argues, however, it does not follow that judges are better placed to protect or determine the rights individuals should have to restrain the untrammelled pursuit of the majority’s view of general welfare. Legislators should, and observably do, consider this question. Judges achieve appointment and promotion because of their skill in the law. There is no necessary reason to believe that that gives them special insights into the rights individuals should have against the state to, say, the provision of healthcare. Does the Convention require them to fulfil this legislative function?
Human Rights Contravene the Rule of Law
The most significant criticism of the Convention and the HRA made by Finnis is that they contravene the rule of law.
The first problem he identifies is technical, and unjustified. To understand it, Article 8 of the Convention is illustrative
Article 8 – Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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.
In language we use ‘rights’ in different senses. Usually when lawyers speak of rights, they are talking about specified conclusions. If I say “I have a right that you do not punch me on the nose” or “I have a right that you do not walk across my field” or “I have a right that you pay me $100 for the books I delivered to you” I am making a claim about specific duties that you are under to me to do certain things. Each of these is a specified (claim-)right. I am identifying a duty another is under to me to do a certain act.
The rights (or is it ‘rights’?) in the Convention are not of this kind. They do not specify who must do what. Rather they are values or interests that provide reasons at a high level of generality that may ground such duties. They are not the end of the analysis, but the beginning.
Under the Convention, the “right” to private life may be interfered with where justified by, for example, the protection of morals. Finnis states that this is inept because a right properly so-called is a conclusion that one reaches only after taking into account all the reasons for and against its existence. As a matter of language this is unfair. We have for centuries used rights in the Convention’s sense of being grounding reasons at a high level of generality (“life, liberty, and the pursuit of happiness”). It is language which is at fault in using one word (“rights”) to capture more than one idea.
The Human Rights Act is peculiar, however, as UK legislation otherwise takes the form of setting out rules telling people in a specific way how they ought to behave. The rule of law problem is that Convention rights are not rules at all. Instead what we are presented with are reasons for and against the State being under (unspecified) duties. And that is it. The job of specifying what the rules are (the claim-rights in the lawyer’s sense) is left entirely open. Legislation does not ordinarily take this form.
Now, of course judges have always been in the business of creating law. If, to take a standard example, legislation states “it is an offence to use vehicles in public parks” a problem may arise as to what “vehicles” means. Are skateboards included, or not? Before a case comes before a judge there is no rule one way or the other. In common law jurisdictions with their doctrine of binding precedent, once it has been determined by a judge that vehicles does (or does not) include skateboards a new rule has been created. How judges can create positive law is constrained, but that they do so is not doubted.
These problems of uncertainty are ineradicable. The problem with the Convention is not just that it is peculiarly uncertain when compared to, say, UK legislation, but rather that it specifies no rules at all. It isn’t, in an important sense, law. It asks the judge to act as the legislator.
The problem is partially hidden within Article 8 by the fact that in determining what the rules are a judge may only allow the interest of privacy to be outweighed by the other countervailing reasons where ‘necessary’. As Finnis notes, however, that word cannot mean what it says.
“We can always imagine getting by without any restriction (and just submitting to accepting the loss and damage), or think up some restriction different from the one under challenge and apt for the same purpose. So no particular restrictive rule is itself necessary.“
What the Article actually requires, at least in a case of first impression, is a, more or less, free form weighing up of the reasons for and against any rule, and no further constraint on the judge in reaching a conclusion one way or the other.
The problem does not disappear in relation to other Articles with apparently more tightly circumscribed exceptions. So, Article 2 states
Article 2 – Right to Life
- Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 2 has not been interpreted as giving rise to a wholly negative duty on the state to refrain from actions that interfere with the relevant interest, but also a positive duty on the state to secure it. So, for example, the police are under a duty to protect us from being the victims of crime.
That positive duty cannot be (nearly) absolute in the way that Article 2 seems to contemplate (which is a good reason for thinking it was to misinterpret the words of the Convention to conclude that it gave rise to such positive duties). The State could, in theory, devote all its resources to the eradication of crime. Nobody would consider that sensible. As a result the duty to protect is not, nor could be, absolute, but is also subject to other (unspecified) countervailing considerations.
There are two responses possible to the rule of law objection to the HRA, neither of which is free from difficulty.
First the party subject to the duties which the Convention gives rise to is the United Kingdom, and under the Human Rights Act it is the constituent parts of the UK State. It is a serious contravention of the rule of law if individuals are unable to determine in advance what their duties are. It is much less problematic if it is the State itself which is subject to this uncertainty.
Unfortunately, this is not the only way in which the Human Rights Act operates. It can have an indirect impact on the duties of individuals inter se (how it does so is a topic for another day). Further the State can only act through real world agents. It is, to say the least, unacceptable if social workers, teachers, police officers and so on are unable to determine in advance what their duties are.
A second response is that we have now had nearly 50 years of European Court of Human Rights rulings setting out the duties of signatory states, and fifteen years of UK courts interpreting the relevant rights in a domestic context. If we go back in time far enough the entire common law was an unspecified open question. Judges were, many centuries ago, originally appointed by the King simply to do justice. The common law is entirely judge made, and is now at a high level of specificity. What is objectionable about going through this process again, and have we not now done enough to know what the rules are?
The answer to that is that we should only return to the conditions of 1154 if we have really good reasons for doing so. As to where we are, this can only be assessed by looking in detail at the rules set down and the many judgments delivered.
The Intentions of the Drafters
How legislation, treaties, contracts, wills or any other rights creating legal instrument should be interpreted is a large and difficult topic that I cannot tackle at length here. Professor Finnis argues that courts (in particular the ECtHR, ECJ, SCOTUS and the SCC) have arrogated to themselves an essentially legislative role by departing from the intentions of those responsible for the enactment of the words they are tasked with interpreting.
The meaning of legislation, or a treaty. is not controlled by the subjective intentions of those enacting or drafting it. We should not care what Maxwell Fyfe (or anyone else) privately thought the scope of any of the articles was for the purpose of interpreting the Convention today. The words mean what they mean, not what those drafting it intended.
Further, if the facts change the application of rules may change. A ‘right to freedom of speech’ could not have entailed access to a broadband internet connection in 1950, when it may in 2015.
However, the meaning of words is controlled by the context in which they are used. Words from a friend that “you have a nice car there”, would mean something quite different coming from a gang of boys when you park in a remote carpark.
The context of the European Convention is the world of 1950. If a ‘living tree’ interpretation is intended to allow a court to ignore the context of the words when used it is illegitimate. That does not mean we are slaves to history, but it does not mean we can ignore it either. Whether the ECtHR adopts an interpretation of the Convention that unfairly ignores the context in which it was adopted, as Finnis claims, is difficult to assess: partly because of the open-textured nature of the Convention itself.
There is currently a campaign to save the Human Rights Act. One form this takes are billboards featuring people who have successfully brought claims under it.
As any lawyer familiar with a case that has been reported in the national press would tell you, brief accounts very rarely give a fair feel for the issues raised, and billboard adverts suffer from this problem to an even higher degree. (The case summaries at the rightsinfo campaign are far superior to those used by ActfortheAct). Professor Finnis deals with some problematic cases from the ECtHR in detail, but of course he, like they, has been selective in his choices.
As I have tried to show in this and my previous post, it is not easy to successfully defend the Human Rights Act in the abstract. What needs to be shown is that in actual real world cases it leads to greater justice. This can only be done by carefully looking at examples. This is a task I shall seek to return to.