On the Tory Attitude to the Human Rights Act

I recently criticised the current disdain of the UK Conservative Party for the Human Rights Act, see here.

In my view, one unfortunate feature of modern British politics is that the Conservative Party is not really engaged with the practicalities of human rights and civil liberties.

Two Conservatives have now kindly responded to my critical post, and their thought-provoking comments warrant a considered response.


The view of Evan Price

The Conservative lawyer Evan Price stated (and I quote as far as relevant):

"The party's position is to repeal the HRA and replace it with a Bill of Rights. At the same time, there is a commitment to remain a signatory of the ECHR and so be bound by the Convention.

"I understand that you want the party to build on the HRA; as I understand it, to a significant degree that is exactly what is proposed. The replacement Bill of Rights is intended to retain the ability of the courts here to adjudicate on issues relating to the Convention rights without the baggage that accompanies the HRA."

Mr Price deserves respect; his website shows that he has an informed and serious interest in the legal context of human rights and civil liberties, and - to his credit - he spoke on such topics at the Cardiff event of the recent Convention on Modern Liberty.

So how will this new Bill of Rights actually work?

Presumably it will provide (a) a legal mechanism to enforce substantive rights, and (b) the substantive rights themselves.


The possible mechanisms of the "Bill of Rights"

Starting with the possible mechanisms for enforcement, the "Bill of Rights" would have to have one of the following legal effects:

1. The Bill of Rights will have no legal effect

The "Bill of Rights" will be merely a normative or declaratory document, and it would not make any legal difference in any given situation.

I assume this is not what is intended.

2. The Bill of Rights can lead to UK statutes being disapplied by the courts when the statutes are contrary to the Bill of Rights

This is the US model, where courts can strike down legislation contrary to the constitution.

This is (just about) possible in the UK as a matter of law: for example, reliance on the the European Communities Act 1972 can lead to statutes and statutory instruments being disapplied.

However, I rather expect this is not what the Conservatives, with their emotional attachment to the supremacy of parliamentary legislation, will be seeking.

Indeed, one can imagine the stark horror of a typical Conservative when those pesky unelected "activist judges" strike down any primary legislation because of fundamental rights.

3. The Bill of Rights will force courts to interpret statutes in accordance with substantive rights

But, er, this is already provided for under section 3 of the HRA. One of the merits of the HRA is the fact that it forces the Court to interpret legislation in a manner compliant with fundamental rights, but the court cannot disregard the legislation altogether.

4. The Bill of Rights will make it unlawful for public bodies to act contrary to substantive rights

Er...again this is what the HRA already provides: section 6, HRA. It is outside the vires of a public body to breach substantive rights.

5. The Bill of Rights will encourage and enable the courts to interpret the common law in accordance with the substantive rights.

Er...yet again, this is what is already happening: mainly in the field of privacy and confidentiality. Ask Max Mosley.

The simple and inescapable fact is that the proposed Bill of Rights would have to have a mechanism which is either of no legal effect, or anathema to Tory principles, or one already contained in the HRA.


Substantive Rights

We can now move on the substantive rights which are to be enforced. This will help us see if the Bill of Rights proposal has any other merit.

Mr Price tells us the substantive rights will be the very same "Convention rights" as under ECHR and enforceable through the HRA.

(One may thereby wonder what the point is at all of the proposed Bill of Rights.)

However, it could be that the Bill of Rights will have a different "take" on the Convention Rights. If so, one needs to understand the nature of Convention Rights.

Importantly, most of these are "qualified" rights - fair trial, privacy, free expression, property, religion, assembly, educational choice, free elections, etc - which can be interfered with by the State, but only if the interference has a lawful basis and proportionate objective. Else the Convention Rights are breached.

Unless the Conservatives want to either (a) drop one of these substantive qualified rights (and which one would they dare choose?) or (b) convert some of these qualified rights into absolute rights (hardly likely), then it is difficult to see why there should be different rights in a Bill of Rights.

(There are also two absolute rights in the ECHR - to life and against torture - which cannot be interfered with at all by the State. But presumably the object of the Conservative Bill of Rights is not to make either of these into qualified rights.)


Rejecting the Bill of Rights proposal

So, in terms of both the mechanism and the substantive Convention rights, there really seems no point whatsoever to replace the HRA with an entirely "new" Bill of Rights.

However, with this Bill of Rights nearly ten years of domestic jurisprudence on how the ECHR works in the detailed context of public law, common law, and statutory interpretation (the "baggage" to which I assume Mr Price refers) will (somehow) be put to one side, creating new and wide-ranging uncertainties as to the correct legal position in a range of areas, from family law to copyright law.

In my view, it would be far preferable that the Conservatives finally "get over it" and accept the HRA (just as New Labour accepted the trade union reforms).

An incoming Conservative government will have far more important legislative tasks than repealing one piece of constitutional legislation and replacing it with another which will either have no effect, the same effect, or effects which they would quickly find unwelcome.


The view of Gavin Ayling

Another Conservative, Gavin Ayling stated (my emphasis added):

"One of the initial Conservative objections to the Human Rights Act 1998 was that it was the first piece of legislation that gave Rights - by implication suggesting that anything not covered is fair game for the State.

"Surely the repeal of positive legislation is the right thing - our rights and freedoms had always previously been to do whatever we pleased unless it was illegal.

"Not that I wouldn't repeal some other laws, but those have not been nullified by the HRA98 so why support it?"

Mr Ayling goes directly to the heart of the matter: are freedoms to be protected in a positive manner? Or are they instead of a residual nature: one is free to do whatever is not illegal?

I used to have the latter view myself, but I have realised that it simply does not work well in English law and is actually rather dangerous.

The "implication" is actually the stark opposite than the one which Mr Ayling draws.

The key case for me was Malone v Metropolitan Commissioner of Police from 1979. It is a case which undermined completely the claims of "one is free to do whatever is not illegal" approach.

In Malone the court held that is it was perfectly open to the police to wiretap and bug whoever they wanted whenever they wanted, as indeed could any other State body.

Why? Because the police and the State were also free to do whatever is not illegal.

That the UK State can do anything it wants, however contrary to the integrity and autonomy of the individual, means to me that it was imperative that the individual has enforceable rights. Without such "positive legislation" the individual will always lose the unequal battle against the State.


The way forward

There are incredible challenges ahead for civil liberties and human rights against the evermore intrusive State, collecting and sharing (and losing) data, invading privacy, arresting and detaining at will, seeking constantly to restrict free expression.

The Leviathan of the State is becoming evermore reckless, hungry, and demanding.

The way forward is surely to take the weapons provided by the Human Rights Act and the ECHR more seriously, not less.

A Conservative government should entrench Convention rights in every police force, Whitehall department, and local authority.

Most of all, proportionality needs to be placed at the centre of policy and decision making: any intereference with a person's Convention right should be no more than strictly necessary.

The HRA is, in my view, the best way of actually doing this.

To repeal the HRA seems to me to be more likely to take from the Law its only current way to rope down the Leviathan.

In this respect, the possible tissue paper of an alternative Bill of Rights will be of no help at all.

And Mr Ayling's implied (if unintended) wish to allow the Leviathan to do whatever he wants would clearly be an unwelcome hindrance.

I would be delighted if Mr Price and Mr Ayling, and any other Conservative, can take this debate further forward. It is a highly important debate for Conservatives to have.

And, even if I am wrong in supporting the Human Rights Act, a Conservative Party which takes the practicalities of human rights and civil liberties seriously would be an extremely welcome feature of the UK polity.