On the Human Rights Act 1998

It may seem a bit ridiculous that anything called the Human Rights Act should have quite as much negative press as it does, human rights being widely recognised to be a good thing and all. But then this isn't the strongest argument: we need only look to America's 'Freedom and Patriot Act' for an example of how the names of statutes can be deceiving.

So why do people take issue with the HRA? It's very hard to say in logical terms, because the reasons aren't particularly logical. If I had to put my finger on a reason – or chain of reasons – it would be this: in the UK we have a media industry that is in no small part based on shock, outrage, and titillation. We like to be outraged. Misleading headlines glanced from someone else's paper on the tube are as indispensible a wakeup mechanism as coffee and a shower. This means papers are sure to shift copies - or make advertising revenue - from stories about terrorists and murderers being saved from deportation on the grounds that they've got families, or pets, or have managed to make an avocado stone sprout using three cocktail sticks and a glass of water, that takes a lot of commitment, and it shows that they've... erm... established roots in the UK*. Of course, with the shifting of copies comes the shifting of public opinion and, sooner or later, it makes political sense to make this a key election policy, even if it makes sense in nearly no other way.

This, at least, is my theory.

If the problem is largely one of public opinion on legislation being formed second hand, it makes sense to look at the legislation itself, so let's do that:

The HRA works a little bit like an English-European plug adaptor (because Human Rights law isn't the only place where pointless English exceptionalism is an issue). It allows us to 'plug in' to the European Convention on Human Rights and use its provisions in our own law. The controversy seems to arise from the idea that the European Convention binds our courts and so prevents British autonomy in enforcing laws that represent those well known 'British values' that we can all unequivocally agree on...like not skipping queues or whatever.

To be balanced, the controversy is not totally without cause. In the beginning the courts did have a tendency to blindly follow Strasbourg's lead - something Jack Straw has since recognised - but this was not because they were forced to. It simply took a while for our judges to find their groove.

When it comes to following the convention, the provisions of the HRA are actually largely discretionary. The act gives a lot of freedom to English judges, obliging them often only to 'take into account' what is happening in Europe. A court must adhere to the convention, according to Sir Brian Leveson, only when there are two viable and legal decisions, one complying with the convention and one not; however, even then, a 'declaration of incompatibility' (s4) need not necessarily undermine provisions in English law. As Lord Faulconer has pointed out, the UK Supreme Court can, and does from time to time, depart from decisions by the European Court. What this essentially means is that, from a legal standpoint, English courts aren't obliged to do very much at all. The parliament may well feel pressure to change legislation once an incongruency with the convention has been exposed, but this is more down to political expediency than to legal obligation.

What the HRA does very well is provide a safety net for human rights. That is, in the absence of existing legislation relating to a problem arising, the act obliges all public bodies to comply with the convention. This means that, whatever happens, those fundamental standards of human rights that the UK played a big role in defining after the war are upheld. If parliament later wants to better define a situation and create suitable laws more in line with those totally clear, well defined, and not at all subjective 'British Values' we all know and love so much, like the queen's right to own all the swans or whatever, it can.

Ultimately, then, parliamentary sovereignty and the Supreme Court are not threatened by the Human Rights Act.

This said, it doesn't look very good for a government if it finds itself challenged regularly on human rights issues. The ECHR is an unfortunate thorn in the side of a fair amount of current legislation, and this may partly explain the government's aversion to it. For example: the freedom of speech implications of the Public Order Act 1986 ss4/5, which are being used more and more and, among other things, have recently led to a student protestor being arrested for telling an (admittedly stupid) joke; the right to privacy implications of the 'snoopers charter' and the recent changes to the Computer Misuse Act 2010 to give immunity to police for hacking offences; and, of course, the consequences for the right to fair trial as enshrined by Article 6 of the ECHR in a country where legal aid is being eviscerated, leaving people to fend for themselves against trained lawyers (often with the sympathy of judges who will lengthen proceedings for the sake of untrained defendants and, ironically, generate increased financial and administrative pressure on the courts).

In the interest of fairness, the act is not without its problems, but the solution is certainly not doing away with it altogether. One such problem is when convention articles are invoked as a defence where they have no real chance of winning. This often occurs in housing disputes where Article 8 (respect for private and family life, home, etc.) is invoked, and usually serves only to waste the courts' time and rack up lawyers fees, both of which are undesirable and expensive outcomes that don't really help anyone... except lawyers. Still, as far as solutions to fairly minor problems go, scrapping the act is really just cutting off the nose to spite the face (which would incidentally be contrary to Article 3 of the convention regarding acts of torture).

Talk of establishing an alternative UK Bill of Human Rights largely ignores just how gargantuan an endeavour that would be. Before we even get there, however, it's necessary to acknowledge just how integrated the ECHR has already become in our common law, as Lady Justice Arden has recently done in comparing it to the Magna Carta. To quote Lord Hope, former deputy president of the UK Supreme Court: problems with the HRA are 'more imaginary that real', and trying to uproot its effect on the common law would be akin to 'getting rid of Japanese knotweed'.

Even if you couldn't care less about people in the UK having enshrined rights to live and express themselves and not be slaves and other totally inconsequential stuff like that, our no longer partaking in the convention could also have other wide-reaching effects**. The UK is a key influence on the European courts and thus our participation helps uphold human rights in other states. Even Dominic Grieve QC, the former conservative attorney general, has pointed out that the UK pulling out of Strasbourg could render the convention 'inoperable'. Angela Merkel seems to be aware of this, and has identified our pulling out as a possible 'red line' for our continued membership of Europe (pending referenda aside), the consequences of which for other UK legislation and trade agreements would create enormous problems for both law and business that would take years to resolve. Ultimately, even leaving aside an interest in human rights per se, to pull out of the convention could prove inefficient, expensive, and impractical in all kind of areas.

This takes us back to the central question, why are we doing this? The only answer I can really find is in the media. Inaccurate and irresponsible reporting on human rights seems to be rife, and this unfortunately includes within the legal profession: a critique of the act by Richard Castle in the Law Society Gazette, in its quotation of the HRA 1998 s3, conveniently misses out the words 'so far as it is possible to do so', which precede the paraphrased: 'legislation must be read in a way which is compatible with [...] Convention rights'. The article also fails to mention the later clauses qualifying when this provision does not apply.

It seems to be becoming increasingly clear to the government that their plans are not practical, things have gone very quiet around the issue in recent weeks, and we can only hope their lawyers will advise against scrapping the Human Rights Act in favour of a British Bill of Rights proposed by a Justice Minister with no legal expertise. In any case, we need to acknowledge that, even in spite of the informed arguments of some of the strongest legal minds in the country today, the sensationalist media can have a disturbing influence on policy and, whether legally minded or not, we all need to engage more readily, and more directly, with these questions before letting outrage get the better of us. Otherwise the true, universally representative, culturally and socially unifying and not at all vague 'British Values' that we all unquestionably share may be under threat. British Values.

* This was never, to my knowledge, a thing. But frankly, that's the kind of practical expertise our overly service based economy could use.

** Abrogating the HRA would probably not lead to murder, torture, slavery, and mass censorship... probably.