Chapter 9

Protecting the Exposed

If the Human Rights Act is not the evil product that its fantasist critics say it is, then what exactly is it doing in truth? In this chapter of the book our job is to make sense of the Act’s engagement with individuals and communities in our society by exploring the ways in which it has fleshed out the universalist mandate that Parliament has clearly given to it. There are three broad dimensions to how this has been realised, and we turn now to each in turn so as better to understand what this remarkable piece of legislation is truly about, and (therefore) its importance. If we were bound to give them abstract descriptions then these would be ‘fairness’, ‘justice’, and ‘inclusivity’, but the dryness of such terms fails to capture the very human stories that are at the core of the Act and through which generalizations of this sort are given life and warmth. Litigation ensures that the Human Rights Act is not only a code of philosophy but a manual for practical action as well.  In this short blog summary we can be concerned only with the general picture: the details though are set out at length in the book in this the longest (and most important) chapter of all.

Fairness For All

What we are concerned with here are all those decisions that the state routinely takes which impact in a huge way on particular individuals but about which they invariably have had no say whatsoever? What concerns us is the effect on individuals of discretionary rulings by public officials, and, putting our interest more specifically, the decisions of this sort that impact negatively on those individuals (and their families) who have limited financial, social, or political capital with which to fight such determinations before they are made, or to resist their consequences afterwards—dreadful though these might often be. These vulnerable people have rarely if ever been able to insist on their views being heard before the life-changing moment hits them: they lose their house because of alleged bad behaviour; they are separated from their newborn babies because they are in prison; they are expelled from the country without their being able to explain they face death at home; they are denied their liberty because they are suspected (on secret evidence) of being terrorists; they are refused discharge from a mental home without being given the chance to prove they are well; and so on. Now whether these people are likeable or honest or have led blameless lives or are none of these things is entirely beside the point. What links all of them is that they are vulnerable. Historically these categories of individuals have rarely if ever been given a chance to put their point of view. For these people due process—more to the point its absence—matters a great deal indeed. The Human Rights Act has achieved a great deal here.

Of course a lot of this is about giving people a fair deal when decisions in the civil or criminal spheres are made that affect them: articles 5 and 6 and so on – there is lots on both of these sets of the rights in the book. But fairness can be understood more widely than this as well.  Take as an example the need for law.  An essential requirement before a departure from a right will be sanctioned—evident in all the articles setting out qualified rights in some shape or form—is that the limitation on a given right must be ‘prescribed by’ or ‘in accordance with’ law. Looked at from the angle we are now taking, we can see that this is a due process test writ large: don’t go after us for merely exercising our rights without telling us beforehand that you were planning to do this, the message preferably taking the shape of a settled rule we were able to consult before we went about our business.

A prime example of how this works is Malone v United Kingdom, a leading Strasbourg decision from the 1980s which has long since fed through into our domestic law. In the course of his trial for handling stolen goods, Malone discovered (through a revelation during the giving of police evidence) that his phone had been tapped without (as it turned out) any statutory or common law authority. Relying on his right to respect for privacy in article 8, he was able later to establish in Strasbourg a breach of this Convention right. The government’s argument, supported in earlier proceedings in the national courts, had been that the authorities could do that which no law prohibited (and so should be able to get on with tapping, it not being banned) but this submission was given short shift by the Strasbourg judges. Doing things behind the scenes on the basis of ministerial sanction had failed to play fair with the public in that no one could regulate their conduct with any kind of knowledge of what the state might be able to get up to. Now of course there was no suggestion of the authorities being required to seek your opinion before they tapped your phone: such an insistence on process would have been as laughable as it would have been counter-productive. It was a broader, democratic kind of fairness, about a citizen’s knowledge of the potential power of the state over him or her, that the European Court was concerned about.

Since this pioneering finding in Malone v United Kingdom, the whole of our national security apparatus has been put on a statutory footing, most recently evidenced in the Investigatory Powers Bill introduced into Parliament in November 2015. There is a decent argument that the post-Malone framework of security legislation has secured the secret services the benefits of legal legitimacy without having compelled too much in the way of a change of practices: that is a discussion for another day, not about the achieving of this sort of parliamentary engagement but rather about its consequences.

Fairness also plays a large part in the case-law on proportionality. The leading case on the application of the Human Rights Act to executive discretion, R (Daly) v Secretary of State for the Home Department (2001) was in many ways if not a ‘right to be heard’ then ‘a right to be involved’ case, driven by a broad reading of fairness and an awareness of human fallibility. The policy the judges in the House of Lords were striking down was one which mandated the search of prison cells in the absence of affected inmates. The point of objection was that legally privileged documents could be scrutinized in the course of such searches even though the relevant policy guidance ostensibly controlled such prying. The major objection taken by the law lords when the case reached them was to the absolute nature of the absence requirement. While this made sense for the ‘core of dangerous, disruptive and manipulative prisoners, hostile to authority and ready to exploit for their own advantage any concession granted to them’, other means for achieving the end of such searches should be found for the ordinary prisoner not intent upon disruption, such as—for example—already pertained in Scotland. Here is a fresh kind of fairness-in-action, with the prisoner assisting in, even invigilating, the search of his or her own possessions, not so much a ‘have you a view on whether I should search you’ so much as ‘please help me to do it properly, preventing me from succumbing to the temptation of disproportionality’. While Lord Bingham rooted his reasoning in the common law he made clear that—as Lord Steyn demonstrated in his speech in the same case—the outcome could be firmly rooted in proportionality via the ‘necessary in a democratic society’ limb of article 8(2).

There are many illustrative cases along these lines, set out in the book. But we end this section with an outstanding example of how the Human Rights Act has broadened our understanding of fairness in a way that reaches groups whose unpopularity is such that the natural majoritarian instinct is to refuse to have anything to do them. Inevitably these cases are controversial. In R (Wright) and others v Secretary of State for Health (2009) the defendant Minister kept a list of those considered unsuitable to work with vulnerable adults. Once on the list, no new care posting could be offered by any employer and any care position already held had to be given up. Working with children was also ruled out. These controls all kicked in even if the listing was provisional, in other words was made pending a final determination by the Secretary of State. Inevitably this confirmatory process could take months, during which those listed (if they worked in the sector, which was highly likely) faced the collapse of their professional lives. The House of Lords unanimously condemned the absence of any opportunity to make representations before a name was included in the list as incompatible with the article 6(1) right to have the determination of a ‘civil right’ done only after a fair hearing, and issued a declaration of incompatibility. This stands therefore as another example of the operation of that important procedural safeguard in article 6(1) that we have already examined. Giving the main speech in the case, Baroness Hale also found article 8 to be engaged so that to be compliant under paragraph 2 ‘procedures must be fair in the light of the importance of the interests at stake’.

Justice

Hearing the other side will often be enough to get human rights law on side with whatever process it is that the executive (in one of its many guises) is seeking to effect: we have seen many such examples in the discussion we have just had on fairness. The assumption behind this is worth reminding ourselves of lest its obviousness pass us by: once we have heard the potentially affected person (the prison mother; the care-worker; the tenant facing eviction), it is thought that we are much more likely to make a fair decision on the substance of their case. If seeing is not necessarily believing, then at least it is empathizing. Already embedded to some extent in administrative law, by deepening this right to be heard the Human Rights Act is doing here exactly one of those things it is principally designed for—throwing light on a vulnerable individual, giving him or her space before a life-changing decision is taken about him or her. Being able to speak up and being listened to is one of the most important human rights of all.

There will be situations, however, where a hearing will not be enough, where the law points in the direction of a harsh outcome, one that cannot be redeemed by a consultation before it takes effect. What then? Courts are reluctant to do too much re-engineering of the substance of a legislative mandate in order to dilute the impact of provisions of which they might happen to disapprove. For a judge to ask for a hearing for the other side is more judicial and less combative than for him or her simply to decide the matter in a different way.  This is especially the case when to achieve the second of these a rereading of the legislative mandate for the challenged decision will be required, something  that can then easily take us to the outer margins of the ‘possible’ under section 3.

This is the issue we discussed at some length in Chapter 6 when we considered the fantasy of supposed judicial supremacy under the Human Rights Act. But as we saw there as well, one powerful motive can very occasionally trump even the natural hesitancy of the judges to push too ambitiously at the limits of the possible. That motive is the desire to do justice. It is very particular, rooted in the facts before them, and can spring into action where the fair proceedings option is not available. In Ghaidan v Godin-Mendoza (FC) (2004) a gay man was enabled by a very ambitious reworking of the relevant provision to remain in the home which he had shared with his late partner. In R (Baiai) v Secretary of State for the Home Department (2008)  the court’s ruling alleviated the financial payments required of those subject to immigration control who wanted to marry and were being opportunistically charged a fortune by the authorities for their romantic temerity. Of interest at this point is not the cleverness of the section 3 analysis but rather the kind of litigants that were before the court: a gay man and a couple subject to immigration control. Here were litigants who would not be at the forefront of legislative concern and for whom the Human Rights Act functioned as a guarantor of justice where none would otherwise have been forthcoming and direct harm would have been caused as a result, in the form of either eviction or a failure to conclude a marriage without large-scale financial loss. The small stable of justice cases shows the Human Rights Act at its pioneering best. The court wants to do right by the litigant and finds that human rights law enables it to do so, not so much ‘hard cases making bad law’ as ‘hard cases being enabled to produce good law’.

In EM (Lebanon) v Secretary of State for the Home Department (2008), the House of Lords unanimously overturned decisions in the lower courts in order to prevent the removal under immigration law of a mother and her son to Lebanon, there being a ‘real risk of a flagrant denial of the right to respect for their family life’ if they were to be sent there. The problem arose from the effect of Shari’a law in Lebanon (from which place and law the mother had long been a fugitive). This would have removed all her custody rights had she been compelled to return; the boy, now 12, would have been handed to a father he had never met and whose violence towards his mother had been the cause of their divorce in that country many years before. Hard though these facts are, it is not the norm to protect non-citizens from the effect of their own countries’ rules, however terrible they may be in the eyes of the host European state. The judges were keen to stress that here was a ‘very exceptional case’ which warranted this dramatic pushing beyond even Strasbourg’s then current boundaries (so far as the extra-jurisdictional reach of article 8 as opposed to, say, the ban on torture was concerned).

Inclusivity

There are four ways in which the Human Rights Act has insisted – in the name of inclusivity – upon the extension of ordinary life guarantees to those whose status as outsiders has traditionally left them very vulnerable. We look at these in detail in the book – each involves a different kind of exposure on the part of a foreigner to treatment which would not be accorded a local. Thus (to take an example that is well known) in Chahal v United Kingdom (1996) protection was afforded to suspected terrorists from India whose plausible claim was that they would be ill treated and/or killed on their return to their home state. The line of authorities to which it has given rise have not exactly been cheerleader decisions for human rights, however right they might be in principle. In RB (Algeria) and another v Secretary of State for the Home Department (2009) the Abu Qatada case produced an outcome largely favourable to the authorities but not before great strides had been made in fleshing out the breadth and range of obligations under articles 3 and 6 so far as the removal of suspected foreign terrorists was concerned. These were then further developed in a subsequent Strasbourg intervention, asserting a breach of article 6 on the facts before it on account of the ‘real risk’ of a ‘flagrant denial of justice’ in the tainting of the applicant’s retrial in Jordan through the use of evidence obtained by torture. Indeed the  human rights safeguards put in place were so successful that Abu Qatada was eventually acquitted. It is unlikely that when legislators agreed the term ‘everyone’ in the Human Rights Act in 1998 they had had Abu Qatada or people like Abu Qatada at the forefront of their minds. It is left to judges to flesh out what grand parliamentary language means in concrete situations.

Let us end here with those very controversial cases arising out of foreign actions by our troops. After a fair bit of uncertainty the Strasbourg Court has recently clarified that the Convention follows the troops of member states abroad, that if a country decides to engage militarily outside the jurisdiction then it must do so in the knowledge that it has taken its human rights obligations as well as its weapons along for the ride. The issue disproportionately affects the British, whose armed forces are more inclined than most to be deployed abroad, and it was the behaviour of some of its soldiers in Basrah in southern Iraq in 2003 that produced the leading case of Al-Skeini v United Kingdom (2011): the killing of civilians in various incidents in the area and the death in custody of the hotel receptionist Baha Mousa, his ‘body and face …covered in blood and bruises; his nose . . . broken and part of the skin of his face…torn away’ after three days in detention. The Strasbourg Court has been the leader here drawing the British judges away from a tendency towards a narrow reading of jurisdiction. It may be that the majority of these European judges share the view of their colleague Judge Bonello, whose concurring opinion in Al Skeini asserted that it ‘ill behoves a state that imposed its military imperialism over another sovereign state without the frailest imprimatur from the international community, to resent the charge of having exported human-rights imperialism to the vanquished enemy’, likening this to ‘wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human-rights promotion’. Whether this is the case or not, as we shall very shortly see, the reach of the Convention into military conduct abroad has drawn the ire of the generals and their supporters in government and the press, with changes being proposed in the new bill of rights to be brought before Parliament.

The beneficiaries of the extension of the Human Rights Act remit that we have been considering in this chapter have been those not normally first in the queue for legal protection. This legislation puts flesh on the bare bones of what we say we believe in—fairness; justice; and inclusivity—testing our claims against very specific, and often heart-rending facts. Which of the winning litigants in any of these cases deserved to lose? Critics of rights legislation are much more comfortable keeping their strong views at arm’s length from the facts. But the Act’s strengths go beyond its reach into these dark unprotected corners of our world. One of the least regarded or publicized aspects of the Human Rights Act has been how it has also engaged with the mainstream of the everyday as well as the lives of our precarious outsiders. The facts speak for themselves here as well; we turn to these in Chapter 10.

Britain, Europe and Human Rights