by Richard Ekins
Wednesday, 15
December 2021
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07:00

We had rights before the Human Rights Act

We can do without the 1998 Act — common law does a better job anyway
by Richard Ekins
Credit: Getty

In Moon Over Soho, the second of his excellent urban fantasy series, Ben Aaronovitch has the book’s hero, PC Peter Grant, invoke the Human Rights Act 1998 as grounds for a duty not to carry out an extra-judicial killing. His (much) older colleague, Inspector Nightingale, responds that the argument only holds if “human being” is expanded to include “vampires and chimerae”. Grant counters that in that case they should wait on the courts, or better yet Parliament, to clarify the law.

I doubt Dominic Raab had this exchange in mind when finalising the consultation on human rights law reform, launched yesterday, although it is true that the consultation does note concerns about “legal uncertainty, confusion and risk aversion” on the part of police and other public servants. And the consultation does set out proposals that aim to make sure that it is Parliament rather than the courts that has the whip hand in making the law.

But the Moon Over Soho passage provides an example of the familiar fallacy of conflating the moral force of human rights with the questionable merits of human rights law in particular. The Human Rights Act is a contingent Act of Parliament, not a badge of civilisation. The question should always be whether it is an effective instrument, all things considered, for helping to protect rights.

Quite apart from the 1998 Act, the ordinary law of the land — common law and statute — does most of the protecting of human rights. This was true in 1998 and is still true today. In relation to extra-judicial killing, the common law of murder forbids anyone, including police officers, from killing, save in self-defence or defence of others. Appendix 1 to the consultation reinforces the point, usefully noting some of the many statutes and common law rules that help protect the rights in question.

Parliament would be entirely within its rights to conclude that the 23-year-old experiment that is the Human Rights Act has failed and to repeal it, without replacing it with some other, more palatable statutory bill of rights. Restoring the law as it stood until the 1998 Act came into force (which, incidentally, was in October 2000; the two years between enactment and commencement were not some kind of lawless free for all) would strip away an unconstitutional mode of rights protection. It would leave intact the main guarantee of our rights, which is the ordinary law of the land, upheld by independent courts and made and changed by government and Parliament.

Amending, repealing or replacing the 1998 Act will not change the UK’s membership of the European Convention on Human Rights. The UK was a party to the Convention well before the Act came into force and would remain so if it were repealed. Membership of the Convention is no more necessary to protect rights than is the Act. In both cases, the question is whether the legal arrangement in question does more good than harm. In relation to the Convention, the position is not exactly stable, because the Strasbourg Court so often rewrites its terms.

Human rights law reform is not for the faint-hearted. Proposals for change are routinely misrepresented by enthusiasts for the status quo as an attack on rights, whereas they are in fact a defence of legislated rights, the rule of law and parliamentary democracy. There may be good small c-conservative reasons to consider amending the Human Rights Act, or replacing it with a new bill of rights, rather than repealing it outright. But if Parliament were to act boldly and repeal the Act, without replacing it, it would simply be restoring the old constitution.

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford

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Simon Denis
Simon Denis
5 months ago

Well said. The torture chambers of the world are wall papered in “human rights” legislation and conversely the best protection of individual liberty is plain, minimal law, impartially and efficiently enforced. The “human rights” act is merely a futile attempt to define justice itself, at best repeating and at worst distorting due process.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
5 months ago
Reply to  Simon Denis

Without a HRA you were able to do anything you wanted to do so long as there was no law against it.
With a HRA what you are able to do is determined by the courts balancing your interests against against those of any group who claim that what you proposed to do somehow prejudices their rights.
Worst of all it puts decisions that should be in the hands of an elected legislature into the hands of a small group of unelected judges. Hence you get the situation in the USA where fundamental decisions on subject such of abortion are made by the Supreme Court and not the legislature.
Moreover, the HRA can be interpreted to mean whatever you want it to mean. Change the complexion of the Court and you can get a different a completely different outcome. So the article of the US Constitution that made segregation lawful was subsequently used to make it unlawful and now will likely be used to make it lawful again only to exclude whitey
Also the abomination that is the UK Supreme Court needs to go and we need to wind the clock back to the House of Lord.

Last edited 5 months ago by Ethniciodo Rodenydo
Arnold Grutt
Arnold Grutt
5 months ago

The whole question of ‘rights’ should be irrelevant to the rule of law in the UK. Such laws as there are should be negatively framed, ruling out a limited number of serious, specific behaviours. ‘Human rights’ are a form of barbarity, as they are by definition positive. Instead of saying ‘Thou shalt not’ human rights law says ‘Thou must..’.
The point about a ‘right’ under law is that it creates, not a ‘responsibility’, as silly blatherers say, but a legal obligation to uphold a particular right whenever claimed by and awarded to another (however controversial or questionable).
The problem with this is that there is literally no limit to the number of ‘rights’ (and corresponding obligations) that may be created (for whatever reason, but usually through sentimentality or for political reasons).
Instead of saying ‘Thou shalt not murder’ (which excludes say killing in legitmately declared warfare in self-defence) the law now effectively says ‘Everyone has a right to life’, which is utterly meaningless.

Apparently we now have an obligation not to be ‘mean’ to certain people, who have been elevated to a status of ‘uncriticisable on pain of punishment’. This is an abuse and perversion of law.

Last edited 5 months ago by Arnold Grutt
GA Woolley
GA Woolley
5 months ago
Reply to  Arnold Grutt

I’d go further and say that most ‘rights’ are nothing of the sort, but the beneficial outcomes of the exercise of responsibilities. The law, and society, would be far better off setting out a bill of responsibilities, with the preamble something like ‘notwithstanding anything contained herein, everyone is individually and corporately responsible for their behaviours and actions in proportion to and in the nature of their power and influence.’

Edward H
Edward H
5 months ago
Reply to  Arnold Grutt

Actually, the “right to life” in the HRA and the Convention is one of the ones which is assumed and framed as a restriction on the State’s power to interfere with life. See Art 1(1) of Sch 1 HRA. (As you point out, this does beg the question why it needed stating.)

Ian Barton
Ian Barton
5 months ago

A basic Bill of Rights applicable to “full citizens” of the country seems sensible in theory – but in practice it might provide a far too convenient vehicle for each new government to change whenever they feel like it.

Either way, Strasbourg’s authority (over the U.K.) must be eliminated.

Last edited 5 months ago by Ian Barton
Claire D
Claire D
5 months ago

I absolutely support repealing the Human Rights Act and not replacing it. I live in hope.

Matt M
Matt M
5 months ago
Reply to  Claire D

Me too! Scrap HRA and ECHR.

Colin Elliott
Colin Elliott
5 months ago
Reply to  Claire D

Do you think this government has the courage to repeal without a close replacement? And if it did, would it be sufficiently articulate to make the case to the electorate (or be allowed to)?

Peter Francis
Peter Francis
5 months ago

Thanks to Prof. Ekins for this piece. I know next-to-nothing about the law, so very useful for me. I am suspicious of any treaty or convention that is worded in such a way that it apparently trumps all other considerations. The inevitable lack of foresight of the authors can create a hostage to fortune for future generations.

Glyn Reed
Glyn Reed
5 months ago

Great to read an article that refers to superiority of Common Law. Such is the dire state of education that few people in Britain – even graduates I know – know what common law is. It’s as if they want people to forget about one of the greatest things we possess.

Last edited 5 months ago by Glyn Reed
David B
David B
5 months ago
Reply to  Glyn Reed

Could you recommend a readily accessible text by which I could become usefully familiar with English Common Law? Sadly I grew up in an era where I was not apprised of its existence during my education (even grammar was a stranger to me until I learned French and Scots Gaelic).
Thanks in advance.

Laura Creighton
Laura Creighton
5 months ago
Reply to  David B

I am fond of Arthur R. Hogue’s *Origins of the Common Law*. This is a history text — how British Common Law developed, over time, which may not be what you are looking for. It was published some time in the 1980s, which isn’t a problem for the sort of book it is, but again might make it not what you were looking for.

Claire D
Claire D
5 months ago
Reply to  David B

‘Law, Liberty and the Constitution: A Brief History of the Common Law’ by Harry Potter (not the Harry Potter, another, real one) is good. An enjoyable and informative read.

Last edited 5 months ago by Claire D
David B
David B
5 months ago
Reply to  Claire D

Thanks both Claire and Laura for your recommendations. I’m tickled by the thought of owning a properly adult Harry Potter!

Colin Elliott
Colin Elliott
5 months ago
Reply to  Claire D

So I might actually get to read a Harry Potter book!

Colin Elliott
Colin Elliott
5 months ago
Reply to  David B

Common law isn’t English only.

Claire D
Claire D
5 months ago
Reply to  Colin Elliott

Common Law originated in the courts of English kings from 1066 onwards. It was called “common” law because it was common to English courts for hundreds of years. Based on precedent and a form of reasoning developed in England. The British Empire spread it around the world.

David McDowell
David McDowell
5 months ago

Sensible arguments and proposals which will be ignored. The Tories show no interest when it comes to wider social and cultural policy. They either don’t understand or don’t care about the importance of controlling the direction of travel on these questions in achieving other policy aims. They could and should have privatised the BBC, abolished the Supreme Court and the House of Lords, and made government funding of quangos and charities contingent on the promotion of ‘shared values’. Effectively replacing the Bliar/Common Purpose establishment with one less hostile to conservatism. But they failed. In fact they didn’t even try.
Now they are paying the price.

Last edited 5 months ago by David McDowell
Arnold Grutt
Arnold Grutt
5 months ago
Reply to  David McDowell

“Sensible arguments and proposals which will be ignored. The Tories show no interest when it comes to wider social and cultural policy. They either don’t understand or don’t care about the importance of controlling the direction of travel on questions in achieving other policy aims. They could and should have privatised the BBC, abolished the Supreme Court and the House of Lords, and made government funding of quangos and charities contingent on the promotion of ‘shared values’.”

This is the use of law to try to address nugatory ‘social questions’ (a phrase in which the word ‘social’ has no actual meaning).
The point of law is prohibition, not the promotion of ‘shared values’.

Last edited 5 months ago by Arnold Grutt
David McDowell
David McDowell
5 months ago
Reply to  Arnold Grutt

That’s true of our legal code looked at in abstract. But when you marry a necessarily general legal code with leftist activist judges you end up with the promotion of leftist values by default through selective prohibition.

Edward H
Edward H
5 months ago

Hear hear.
FWIW, my problem with the HRA is that many of the “rights” there enshrined are stated into legal being. This is fine for the European model of civil law, but sits uneasily with the English Common Law tradition.
Take freedom of expression, for example, which is stated thusly in Article 10 of Sch 1 HRA 1998: “Everyone has the right to freedom of expression.” That sentence is then clarified in the remainder of Art10(1) and, in Art10(2), heavily caveated.
This is to be contrasted with, for instance, the American 1st Amendment: “Congress shall make no law […] abridging the freedom of speech …”. In the American case, the right to free speech is assumed and the restriction is placed on the State’s ability to interfere with that right.
The problem with relying on the Convention or the UK’s HRA is that any dictator we wished to criticise for failing to respect any of the “rights” which are stated into legal existence would be able to respond that the “right” in question is only as good as a piece of paper, and could be repealed. Whereas the American way of doing things assumes that the right exists and belongs to the people concerned, so the dictator would not as easily be able to say to the Americans that the right he is disrespecting is contingent.
For that reason I should like to see that any replacement to the HRA assume that the rights exist and belong to us (the people) and be redrafted (if required at all) as restrictions on the State’s ability to interfere with those rights.

Last edited 5 months ago by Edward H
Judy Englander
Judy Englander
5 months ago
Reply to  Edward H

Relating more to the Equality Act than the HRA, I see us moving from the assumption of liberty to a system of speech permissions, which assume no controversial speech is permissible unless it’s specifically protected in law. So I don’t think the ‘wins’ for protected philosophical belief (eg gender-critical) are wins at all. In fact I find the idea of protected speech so close to permitted speech that it’s chilling.
It’s a bad state of affairs when Maya Forstater has to go to law to have her gender-critical speech ‘protected’, ie, permitted, rather than her freedom of speech being the default.

Last edited 5 months ago by Judy Englander
William Shaw
William Shaw
5 months ago

Why is the Tory Party so timid?
End the involvement of Strasbourg in UK legal decisions.

Last edited 5 months ago by William Shaw
Matt M
Matt M
5 months ago
Reply to  William Shaw

I have long thought this would make a great campaign for the Tories. The Labour Party – led by a former human rights lawyer and with rights-based international law as their very essence – would fight it tooth and nail.

It really is a continuation of Take Back Control. First from EU, then ECHR.

The problem as you say is timidity.

Last edited 5 months ago by Matt M
Doug Pingel
Doug Pingel
5 months ago
Reply to  Matt M

Not timidity at all, just plain cowardice.

John Verrill
John Verrill
5 months ago

One objection to the HRA is that it starts from the false premise that we are all citizens driving rights from a constitution as in the US or Civil Code countries. In the UK we are subjects, that is of the Crown and free to do as we please unless by law prevented from doing so. We are freer on this basis than mere citizens.
The correlative of a right is a duty. The problem of the rights industry is the duties imposed on us all by feeble so called minority rights, which amount to mere choices, amount to the creeping expropriation of the rights, properly so called, of the majority.
Note also that under UK laws of sovereignty of parliament even a binding Bill of Rights could be repealed. See Bingham: The Rule of Law. The repeal of the HRA presents no difficulty in practice.