Chapter 8

A Charter for the Bad

The Human Rights Act is far more benign in its protection of the powerful than you could ever imagine from the criticisms that it receives. Received opinion has become so familiar with the idea of the Human Rights Act as a protector of villains that the perception has become normalized within our culture, assertion becoming truth in the absence of speedy refutation. It is the Act that kept ‘notorious terrorist’ Abu Qatada in the UK years after he should have been sent back to Jordan to face terrorism charges. The Italian 15-year-old killer of head teacher Philip Lawrence outside the gates of his own school in north London in 1995 was able to stay in Britain after serving his sentence because he could rely on his ‘human right to family life’ in the UK. Imprisoned mass murderers have a right to access pornography under the Human Rights Act just as axe killers like John Hirst (whom we met briefly in Chapter 7) have won the right to vote in prison. The examples are legion; of those mentioned above, some are inaccurate (Abu Qatada was not convicted due to insufficient evidence in Jordan when he was finally sent there), incomplete (the Lawrence killer’s main crutch against expulsion was EU law), or downright inaccurate (Dennis Nilsen’s effort to access pornography in prison and to publish his own book have been unsuccessful, and when one looks at the Hirst judgment closely it becomes clear that under no Strasbourg-imposed scheme would murderers be entitled to the vote, as opposed to some less serious offenders).  The barrister Adam Wagner has written an excellent short paper with many of the worst excesses of press and political hostility laid bare, calling it (entirely appropriately) ‘The Monstering of Human Rights’.

We will be coming back next week (when we turn to facts) to the way in which the Human Rights Act has operated for those at the margins of our society, whether they be asylum seekers, prisoners, or other vulnerable persons, such as those with mental health problems, children, or defendants in criminal trials. Viewed in the round, the measure threatens the powerful disconcertingly little, much less than you might have imagined from all that is said about it.  The imprint on the Human Rights Act of its conservative origins in the European Convention of the early 1950s is clear for all those who want to see. To start with there is the modesty of the rights protected: a collection of civil and political rights that were rightly thought central to the rebuilding of Europe after the Second World War but which now look spectacularly unambitious, at least when viewed from the perspective of the vibrant international human rights jurisprudence that is these days to be found in other fora (some of which we glanced at in Chapter 4). There are hardly any social and economic rights, nothing on cultural rights, precious little involving any robust impact on equality (beyond the enjoyment of the civil and political rights already set out), and pressing issues such as indigenous, environmental, and disability rights pass the document by completely. And of course when these cases are lost the Government is left able to say that its policies, however unpleasant, however much they seem to breach international human rights, are in fact perfectly fine by these standards, a handy reply to critics for sure.

Even in the arena of civil and political rights, its supposed forte, the Act is not all that its enemies (and many of its friends) suppose. True the courts are more robust here, with the winning cases coming along more frequently.  On a number of important occasions since the Human Rights Act came into force, the Strasbourg court has also stepped in to act as a brake on our judges’ tendency to support the authorities, the retention of DNA samples being one such example, and the deployment of wide stop and search anti-terrorism powers another. But there are examples in this field as well of an old-fashioned supportiveness of executive power returning to centre stage from time to time, on terrorism law, the exercise of police powers and on extradition law – the full details are in the book.  This applies to both Strasbourg and the UK courts.  And once again when the state wins, policies that might have been controversial in human rights terms before the litigation are insulated from rights-criticism thereafter.

Viewed in the round, it is perhaps true to say that the conservatism of the Strasbourg system and the Human Rights Act is masked by how little radicalism our political culture has had to deal with in recent years.  If we were to have a truly Left-wing government here in Britain for example, there can be little doubt that the Act would function as a strong shield against state intervention of a dramatic sort, returning to its founding Convention’s origins as a hedge against ‘extremism’ from the Left more than the Right (on which see Chapter 4). To pick some of examples of the point I am making, the private school system would be most likely able to resist change through reliance on the education right (in the first protocol).  Even something so modest as the withdrawal of the tax advantages enjoyed by such elite schools (based on their being charities) which surfaces as an option every now and again – most recently by the May government – in the political sphere has been seen off in the past on, among other grounds, the human rights problems that it would cause. In a similar vein, the right to property in article 1 of the first protocol may be heavily qualified but it is not so attenuated that it does not prevent the taking without compensation of the assets of an individual. We need to recall in saying this that ‘individual’ here might be a high net worth person such as the Duke of Westminster or a former ruler asserting compensation via his historic right to confiscated land, or even a corporate entity with assets that it seeks to protect. It was the fear of compensation that inhibited Labour from undoing in full the privatization of the railways which had been achieved by the Conservative government—even offering some compensation led to a human rights-based challenge from those natural and (mainly it can be imagined) purely legal ‘persons’ who asserted they were not getting back enough.

And then there is the whole issue of damages: this is where power can be really made to count. The drafters of the Human Rights Act tried to be very careful here, circumscribing the potential of damages so as to avoid ratcheting up the cost to the state of human rights litigation. They did so reasonably confident that the remedy would not be overused, not least because the Strasbourg record on damages as a source of ‘just satisfaction’ (the formula for a remedy in the Convention) was, by comparison with the UK courts, pretty stingy. That is how it played out at first, and still does so far as ordinary litigants are concerned, but recently there has been a change of tack with regard to commercial enterprises. Of great importance in this regard might prove to be the High Court decision in R (Infinis Plc) v Ofgem. In this case, the applicant had no private law claim for the failure to accredit it under a particular statutory scheme, the defendant regulator having misapplied the law, not out of any sense of deliberate badness but just by getting the legal requirements wrong. Framing this as a breach of Infinis’s property rights under the first protocol opened the door for a damages award that reflected the clear calculable loss to the company from the mistake, a whacking £2.5 million plus. This was the award the judge made, the ruling being later upheld in the Court of Appeal. As a leading law firm’s Administrative and Public Law E-Bulletin wryly put it, ‘[t]his is an outcome which should be of interest to anyone operating within a regulated industry’, while ‘[c]onversely, regulators applying complicated schemes will need to ensure a robust decision making process to avoid the finding of a Convention violation and a potentially large damages award.’ Company directors should think carefully about where their own interests genuinely lie before believing everything that they read in their Mail and Telegraph about this iniquitous ‘Charter for the Bad’.

Britain, Europe and Human Rights