Defend the Human Rights Act!
It is time as we come to our conclusion to draw the various threads of this book together. Why does the Human Rights Act matter so much? At one level it is merely one of a number of innovative laws enacted in the first years of a progressive Labour administration at the end of the last millennium, of a piece with the devolution legislation, freedom of information, and a (modest) reform of the House of Lords. One could argue that the law matters—but mainly to lawyers, its new set of guidelines for judges in their oversight of the administrative state being important to those who need to know these things and to clients who are affected by them, but not otherwise generally significant.
Much of this book has been about the value of the Human Rights Act in this restricted zone. We have considered at some length its contribution to the restructuring of judicial review along more principled lines than existed before it came into force. We have observed the way in which the Act has pushed at the boundaries of the permissible so far as judicial engagement with policy is concerned. We have reflected on how it has invested the shapeless pragmatism of the common law with a new ethical purpose. Perhaps most of all we have looked on (and from the writer’s perspective admiringly) at the stimulus the Human Rights Act has given to holding the government to account for its actions with regard to a range of vulnerable (and frequently unpopular) members of UK society. These are no small victories, for sure, but they are primarily legal in nature. For all its importance, there is more to the Human Rights Act than litigation, even of the ground-breaking sort (of which, as we have also seen, there has been a great deal).
At a second level of greater abstraction, the Human Rights Act has reached past the law and into our general approach to governance. This was something that the drafters of the legislation intended. The imposition of a duty on all public authorities to respect the Convention rights is evidence of this, as is the obligation set out in section 19 under which all proposers of government bills must explicitly state their view of the draft law’s compatibility with those same rights. These legislative steers towards human rights, accompanied by the establishment (outside the Human Rights Act) of the Parliamentary Joint Committee on Human Rights and the Commission for Equality and Human Rights were consciously designed to spread the human rights word beyond the law courts and into the very heart of the bureaucracy. Proponents of human rights often spoke of a ‘culture of rights’ and the success of the project of ‘embedding human rights in Britain’ has been to get public authorities generally to think about rights even in situations where legal challenges are far from anyone’s mind. This has not been at the insistence of the courts: indeed the law lords went out of their way early on to relieve such bodies from the duty of checking all they do against a human rights list of rights, the judges preferring to assess the decisions they make in the round rather than through asking whether they had explicitly taken specific human rights into account.
This inclination to respect human rights has grown through a process of accretion, on this occasion not into the judicial but rather the ‘administrative cerebellum’. As was observed in Chapter 1, the sell is not, after all, a particular hard one. The language of fairness, justice, and inclusivity runs with the grain of our progressive instincts and even in difficult cases it is a hard-nosed (and we might assume exceptional) administrator indeed who would erect ‘utility’ or ‘convenience’ or ‘the interests of the many’ as insuperable barriers to the realization of such values in concrete situations.
The broadest impact of the Human Rights Act may, however, be the most important of all, all the more important now in light of the BREXIT decision. This is a theme from Chapter 1 to which we can now return. The European pedigree of the Human Rights Act is as obvious as its preferment of the language of universal rights over the old vocabulary of civil liberties. Here is a law not content with the old ways, the politico-legal culture in which it was ‘Britain alone’ or at very least ‘Britain first among equals’. The United Kingdom prepared to enact the Human Rights Act is a country that knows that it needs help and is also one that has the wit to see that help strengthens rather than weakens it in the world in which it finds itself today: not 1850 or 1950 or even 1980, but today. The nation state has survived as the key tool in the organization of the political but the battering it has taken from the global forces swirling around it means that such polities can only preserve their position through alliances, ‘coalitions of the willing’, partnerships dedicated to mutual assistance. And just as with people, in the affairs of nations help needs to be reciprocated if the giving of it by others is to be anything other than tactical astuteness or mere compassion. The United Kingdom should be wary of the former and should not want the latter. That leaves reciprocation, giving as well as taking, helping as well as being helped. The Council of Europe is a classic example of multinational solidarity, the Convention on Human Rights and Fundamental Freedoms its proud centre-piece, and the European Court of Human Rights in Strasbourg its emblematic ethical centre. There is far more going on here than merely this or that judgment with which we may or may not agree. This is a project to promote a set of fundamental values which have human rights at their very core. The UK must play its part in supporting this edifice, all the more now that it is diving into the provincial so far as the European union is concerned. .
There is a large irony when we ask what those values are that Strasbourg promotes and the opponents of its jurisdiction so abhor. They are exactly, almost word for word, the values trumpeted as British by the Government and its enthusiasts for a stronger national identity in the United Kingdom: ‘democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs’. One is irresistibly reminded of the old joke about God showing people around Heaven, encountering a walled area and when asked about it God replying that that is where the Catholics are; they think they are the only people here. The United Kingdom would be fine about the European Court of Human Rights if everyone pretended it was a subset of British power, that its values were British, and that its jurisdiction was a British favour to the world. The Human Rights Act would be worth protecting even if all it did was wreak havoc with a fantasy like this.
The Act does more than any of the aspects of it we have noted in the course of these final remarks. It epitomizes an attitude towards these British/European/global values, namely that they are to be taken seriously, that they are not just background music to blot out the sounds of unfairness, injustice, and inequality that in reality persist behind the camouflage offered by this fine talk. Human rights offer a route to a society where all are equal before the law, where each of us has a chance to engage in political activity on a level playing field if we so wish, and in which the basics of a decent life are regarded as the minimum to which each of us is entitled, whatever our birth circumstances, our ethnicity, our gender, or our sexual orientation. Of course the Human Rights Act does not in itself achieve all this: its rights are limited, its role in culture hardly all-encompassing, its enforcement often tentative. But it is part of this wider story, a cog in the wheel that helps keep our world spinning in a civilized way, amid all the turmoil caused by the constant movement of modern life. The past should not trump the present or our future will be at risk. The subject is too serious a one for fantasy.