By Simon Whipple
Simon is a solicitor and a member of Dorset Humanists committee
“The Human Rights Act is a legal instrument that makes the United Kingdom subservient to the decisions of judges in Europe.”
This statement has been made repeatedly since the Human Rights Act came into force in 1998. It is often conflated with arguments for Brexit, although actually it has nothing to do with Britain’s membership of the European Union. There are two diametrically opposed ways to respond to it:
1) The Human Rights Act is a dreadful infringement of Britain’s sovereignty, allowing unelected judges in Strasburg to impose ludicrous laws upon the British people; or
2) The Human Rights Act ensures that the universal rights of citizens apply in Britain just as much as they apply elsewhere in Europe.
To help you decide which response you prefer, it is worth knowing the history of human rights law in Europe. After the Second World War there was a widespread desire to ensure that the conditions which had led to a global war starting in Europe never occurred again. In particular, Nazi Germany’s removal of the civil rights of many of its citizens should not again be possible.
And so, in the late 1940s, as the defeated countries re-formed their own governments, they were encouraged by the USA and the UK to join the Council of Europe (not to be confused with the European Council or the Council of the European Union). Eventually, all the countries of Europe joined and agreed that the basic values that would guide the Council were democracy, human rights and the rule of law.
There was huge enthusiasm for the Council of Europe in its early years, as its pioneers, who were greatly assisted by British lawyers, set about drafting what was to become the European Convention on Human Rights. The ECHR is a charter of individual rights which – it was hoped when it was signed in 1949 – no member government would ever again violate. It drew, in part, on the tenets of the Universal Declaration of Human Rights, signed only a few months earlier. But crucially, where the Universal Declaration was essentially aspirational, the European Convention from the beginning featured an enforcement mechanism - an international Court - which was to adjudicate on alleged violations of its articles and hold governments to account, a dramatic leap forward for international justice. Today, this is the European Court of Human Rights, whose rulings are binding on 47 European nations, the most far-reaching system of international justice anywhere in the world.
The ECHR is drafted in broad terms, setting out in Articles 2-14 broad statements of human rights. Such statements of principle require extensive interpretation by courts to bring out meaning in particular factual situations. An example of one of those Articles, and how it was interpreted by the European Court, is as follows:
Article 3 - Prohibition of Torture: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
This article is a very brief statement of the law concerning a complex matter. It does not define the meaning of torture, and this had to be done by the European Court when it considered a case relating to allegations of torture. Torture became a topical matter in Northern Ireland in the 1970s as the Army and Police treated IRA suspects with controversial techniques, including the use of hooding of suspects and subjecting them to white noise, to try to make suspects more co-operative when they were interrogated. There was nothing in UK Law which made this treatment unlawful. In 1978, the Irish Government took the British Government to the European Court (Ireland v UK) regarding this issue. The European Court found that Britain was not guilty of torture, but was guilty of 'inhuman and degrading treatment'. Following this decision, Britain passed the Police and Criminal Evidence Act 1984, which for the first time set out clear legal procedures for dealing with criminal suspects, and therefore ensured that the human rights of prisoners were made clear.
Until the Human Rights Act of 1998, although Britain had signed a treaty to agree to respect the ECHR, it was virtually impossible for a British citizen to ensure that his or her human rights were respected. Since the early 1960s it had been possible for individual British citizens to appeal directly to the European Court at Strasburg, but this was usually impracticable.
The Human Rights Act brought the ECHR into British Law in two ways. First, it required that any future legislation made by the British Parliament had to be compatible with the ECHR, and second, it required that the British courts could be asked to review any claim that a British public organisation had breached the ECHR.
Criticism of the European Convention of Human Rights
Every few months there is further talk of repealing the Human Rights Act and replacing it with a new Bill of Rights which would stop Britain being subject to the judgments of the European Court. There would be a considerable irony if Britain withdrew from adherence to a Human Rights convention which it had itself drafted seventy years ago, claiming that the ECHR is now out of date. Those who seek to repeal the Human Rights Act argue that case law made by the European Court which adjudicates the operation of the ECHR in other European countries should not be used in British courts because it would not be relevant to British circumstances. They claim that it is very burdensome upon the British Government to have to defend itself in court against irrelevant legal judgments. I think this is nonsense. The nature of human rights is that they apply in all countries and in all ages. The legal draftsmen who prepared the European Convention made sure that they would apply to all conceivable circumstances. To return to Ireland v UK quoted above, if using hooding and white noise as an interrogation technique was a breach of the human rights of a suspect in 1978, it will continue to be a breach of a suspect’s human rights forever into the future, irrespective of how the nature of policing and terrorism may evolve.
A second, and for me an initially persuasive criticism of the present system, is that, while there exists a Human Rights Act, there is no balancing 'Human Duties Act'. Since the Second World War we have seen a growth in the law of human rights, so that we have seen the growth of a culture of rights decoupled from our responsibilities as citizens, and a displacement of due consideration of the wider public interest. Like many political arguments, this claim seems persuasive – but it is irrelevant to whether the Human Rights Act should be repealed. People would still need to be able to assert their rights, even if new laws were made which gave citizens more duties to provide services towards their fellow citizens and the society in which they live.
There is another article in this edition of Humanistically Speaking about the Human Rights Act, by Laura Newlyn who is the Policy and Campaigns Officer at Humanists UK. Laura explains how the HRA has particular benefits for humanists because it empowers courts and public bodies to ‘read in’ extra words to legislation and policy to make sure that your human rights are respected. This means that policies and legislation that mention ‘religion’ must be understood to include analogous non-religious worldviews, such as humanism. As a result, we now have legal humanist weddings in Scotland and Northern Ireland, and schools in Wales have a legal duty to teach humanism as part of the curriculum in religious education. Laura also updates us about the campaign against replacing the HRA, and the contribution to that campaign made by Humanists UK.