Five years after implementation, the Human Rights Act has introduced many changes. But amid concerns over terrorism, are basic values under threat? asks Grania Langdon-Down

The prime minister’s statement that ‘the rules of the game have changed’ when he announced new measures to deal with terrorism after the 7 July London bombings has provoked a highly charged debate about the Human Rights Act 1998 (HRA), which earlier this month passed the fifth anniversary of its enactment.


The battle has raged around the deportation of terrorist suspects to countries where they might be tortured; warnings to the judiciary that they must not interfere with ‘memorandums of understanding’ negotiated with those countries to prevent abuses; the length of time terror suspects should be detained without charge; and a new offence of glorifying terrorism. Ministers have veered between bullish statements about amending or repealing parts of the Act, and concessions intended to stave off rebellion.


For Richard Stein, human rights partner at London firm Leigh Day & Co, the irony is that the very government that was determined to ‘bring rights home’ by entrenching the European Convention on Human Rights (ECHR) in domestic legislation, is the same one that is now ‘bringing fundamental human rights abuses home’.


He is acting for human rights non-governmental organisations that are intervening in A and others [2004] EWCA Civ 1123 in the House of Lords this month. A large number of interested parties, including the Law Society, Liberty, Amnesty and the International Bar Association, have submitted amicus briefs seeking to overturn the Court of Appeal’s majority ruling in August 2004 that evidence obtained via torture by agents of another country, and not procured or connived at by UK agents, is usable in UK courts. The appeal court also decided that the home secretary has no obligation to inquire into the origins of such evidence.


Mr Stein says: ‘These groups usually spend their time complaining about the awful things some third world tinpot dictator is doing, but now the tinpot dictator is the one who brought human rights back home. The idea that we could be having these kinds of discussions is completely extraordinary.’


For Richard Gordon QC, a specialist in human rights and judicial review at Brick Court chambers in London, the past five years have seen a ‘massive assault’ on the liberal values that shaped the convention.


‘It seems to me that 11 September 2001 and 7 July have led to a position where we, as a society, are facing a re-evaluation of the values we created through the HRA, such as freedom of speech and privacy. Before 2 October 2000, when the Act came into force, privacy wasn’t even known to our law, and freedom of speech wasn’t recognised as a cultural value. You only have to fast forward to the problems we have with control orders and freedom of speech becoming an incitement to terrorist activity, to see the very values which allow you to formulate a concept like freedom of speech are under threat.’


He argues that human rights come from our membership of a society, not from being human. ‘If judges overturn government decisions simply by recourse to ideological human rights in a way that fails to protect collective security, there is a real danger of a backlash.’


He points to the House of Lords’ ruling on the Belmarsh detainees, where the indefinite detention of non-British alleged terrorists was declared to be disproportionate because it discriminated on the ground of nationality or immigration status without achieving its stated aim of preventing terrorism. ‘It was popular, but that was before 7 July. I am not saying it wasn’t rightly decided, but you have to be very careful about applying formulations of human rights in a society not under threat to one which is facing real danger.


‘What we have to do now is forge rights which recognise and give voice to liberal values, but at the same time recognise the collective responsibility the democratic government has to its citizens.’


Since the Act was implemented, the higher courts have issued 17 declarations of incompatibility, in contrast to the prediction of the then Lord Chancellor, Lord Irvine, when he introduced the Human Rights Bill into the Lords, that such declarations that legislation did not comply with the HRA would be rare.


The judiciary is clearly prepared to take a stand. Indeed, the new Lord Chief Justice, Lord Phillips of Worth Matravers, told his first media conference this month that politicians must not try to browbeat judges over the interpretation of legislation (see pages 20-22).


Roger Smith, director of human rights group Justice, maintains there is a fundamental question underlying the debate about the appropriate relative powers of the judiciary, the executive and the legislature within a democracy that has signed up to international standards of human rights.


‘The big issue about the HRA is – is it really driving through constitutional change? It is too early to tell. If you look back over the last five years, you see a rather stuttering start before things settle down, leading one to the view that quite a major change has taken place.


‘You do now have high watermark cases like Belmarsh and Ghaidan v Godin-Mendoza [2004] UKHL 30 [which involved the inheritance of protected tenancies by same-sex couples], where the Lords said the judiciary had to take a strong and brave line in construing legislation so it is compatible with the ECHR.


‘Now, you have a reaction precipitated by terrorism, and you have the potentially dangerous and rather destructive position where politicians, instead of rolling with the punch, seem to want to square up for a fight.’


He says the country is approaching a constitutional crisis, which is why Justice has launched a consultation paper ‘Changing the rules: the judiciary, human rights and the constitution’, with a final report planned in 2007, Justice’s 50th anniversary. ‘Tony Blair is right to say the rules are changing. The question is how will it end up?’ he says.


Stephen Grosz, head of public law and human rights at London law firm Bindman & Partners, is chairman of the Law Society’s domestic human rights reference group. He maintains that the government remains, in the last analysis, committed to the ECHR and the HRA ‘so it isn’t really under serious threat’.


The most difficult test came after the Belmarsh decision, he says. ‘Had the government decided not to respect the judgment, that would have made a serious inroad into the effectiveness of the HRA. Whether what they did in response, with the introduction of control orders, was convention-compliant is another matter.’


Mr Grosz says the government’s plan to introduce legislation telling judges what it thinks the HRA means is an ‘unworthy’ fifth birthday present for the Act. ‘It goes against the spirit of the whole thing. But, ultimately, I suspect that if [the European Court of Human Rights in] Strasbourg tells them they have got that wrong, they will repeal it and go back to what the convention should say, rather than thumb their noses at Strasbourg. Otherwise they would create a crisis.’


Despite human rights dominating the headlines in relation to terrorism, for many lawyers, the HRA has not had the dramatic impact many people predicted; while some have claimed it has fuelled the so-called compensation culture, there is little evidence to support this.


Louise Christian, senior partner of London firm Christian Khan, says: ‘The effect has been quite muted. People still make claims that there have been large numbers of ridiculous and unjustified court actions but there haven’t – it makes you wonder which parallel universe they inhabit.


‘My hope was that the HRA would be the beginning of a much more enlightened discourse about human rights. The fact that the government which brought it in is now attacking it is deeply disappointing.’


She questions how much the new Commission for Equality and Human Rights, which comes into being in 2007, will be allowed to promote the concept of human rights more generally. ‘Many human rights lawyers have argued that it should have been set up when the Act came in.’


One area which still generates difficult case law is the meaning of ‘public authority’, and when that should include private bodies that carry out public functions, such as private care homes, says Mr Gordon.


Overall, he considers that the HRA has had a huge effect. Legislation has to have a certificate of compatibility, while huge resources have gone into preparing public authorities. ‘It has also been huge in cultural terms. In the old days, you could do anything provided you weren’t forbidden by law. Now you can’t invade a human right unless it is justified – which is a reversal of the common law position.’


He warns that all lawyers have to be ‘on top of the Act’, although the biggest impact has been in immigration, crime and mental health. However, he does not think it has been misused. ‘There have been a few wild cases, but the courts have been pretty quick to kick them out. It has led to more cases – the House of Lords decides far more human rights cases than any others. But most tend to be legally aided work, so it is not hugely profitable for lawyers – though it is of consuming interest.’


For Lucy Scott-Moncrieff, managing partner of north London legal aid firm Scott-Moncrieff Harbour & Sinclair and chairwoman of the Law Society’s access to justice committee, mental health has been one of the fields that has ‘done well’ out of the HRA. ‘Detained patients and prisoners are people whose lives are managed by the state in minute detail, and so their need for the HRA is greater than the average citizen’s.’


Ms Scott Moncrieff highlights the ‘great victory’ in ‘H’, which led to the government changing the discharge criteria for people detained under the Mental Health Act 1983 so it is no longer the responsibility of the patient to prove they are entitled to be discharged, but the hospital’s responsibility to prove the person should continue to be detained.


‘It has had a transforming effect,’ she says, adding that, while the human rights culture has not permeated vast swathes of the country, hospitals where patients are detained are now very aware of the issues. There have also been some ‘eloquent and sensitive’ judgments involving capacity and people with learning difficulties, which show a growing awareness of issues about human dignity.


However, there has been a backlash in civil liberties terms, she says. ‘We are not a society that gets thrilled by people saying, “I know my rights”, particularly when it is at the expense of someone else.’


As a result of the HRA, she says her firm is doing more judicial review work. But she does not believe the Act is being misused. ‘We get a lot of letters from people saying, “Will you take this case on?”, and they are bonkers letters, and we explain that proportionality means they haven’t got a hope. The way legal aid is structured also precludes the possibility of cases going too far. Lawyers are not going to take ridiculous cases because their reputations and their incomes depend on them making sensible decisions.’


Gifty Edila, president of the Association of Council Secretaries and Solicitors, says local government lawyers have worked hard to absorb the human rights culture. She too sees no abuse in how the Act has been used: ‘It’s been well targeted by solicitors. We have been successful in many of the cases where the Act has been pleaded, but I don’t think it was because they were frivolous cases. There were genuine reasons to test the issues, but we were successful because we had taken human rights into consideration.’


She says that, on average, about 25% of council legal work attracts some kind of human rights argument, with cases involving housing, social services, child care, education, licensing and planning. Most are linked to mainstream legal actions, although one recent ‘single issue’ human rights claim involved the right of prisoners to vote.


‘At the beginning, a lot of cases arising out of asylum seekers’ claims over housing and health issues did test some authorities very heavily. But the Act is now embedded in the overall scheme of things, and our focus on its impact has helped limit the volume of potential claims.’


She says the HRA has met its objectives. ‘At the end of the day, we are not just service providers. We are also individuals who benefit under the Act. It was a necessary Act, and it has heightened awareness about individual rights and the fact that you cannot take individual needs for granted. It has brought really key social issues to the forefront of the minds of those providing services and, to that extent, it has been very good.’


For Mr Grosz, one of the challenges for advocates of human rights is to convince the public that they do matter. ‘Although people are willing to see the surrender of human rights in order to assist security, it is the rights of other people that are being taken away, not their own. They might be less willing to support terrorist suspects being held for up to three months if they were the hapless suspect.’


Francesca Klug is a professorial research fellow at the London School of Economics’ Centre for the Study of Human Rights. She has been reviewing the HRA with Keir Starmer QC for the journal Public Law. Ms Klug helped develop the declaration of incompatibility model, and points out that there was no appetite at the time for judges to have a US-style power to strike down legislation. She says: ‘I think the HRA has worked more or less as we hoped. It has probably exceeded my expectations because it has not been a damp squib in the courts, which some people who were worried about the declaration of incompatibility model thought it might be. On the other hand, it hasn’t led to a rampant litigious culture, and it has led to some significant advances in people’s everyday lives, including people who are severely disabled, in gay and lesbian relationships, mental health patients, as well as in the terrorist and torture cases.’


The disappointment, she says, is that the Act has not gained the affection of the public, which it needs to do to survive the inevitable political buffeting. However, this is not surprising without a human rights commission, although she is hopeful the new equality and human rights body will prove significant.


Overall, Ms Klug sees a ‘parallel universe around the HRA’. She explains: ‘On the one hand, politicians and judges are quarrelling over it and politicians are making sabre-rattling noises. On the other, we are having some fantastic cases which are benefiting people who are not the usual suspects. Witness the breast cancer drug case, which didn’t have to go to court.


‘This is actually the point of bills of rights. It isn’t about people spending their lives in the court room, but understanding what their fundamental entitlements are and expressing them in such a way that there is an accommodation with the public authorities that makes sense.’


The Disability Discrimination Commission, for instance, has used the HRA to turn round people’s lives, she says, because it is a route to dignity and respect which discrimination legislation cannot provide.


Ms Klug adds: ‘I honestly think that if an attempt was made to dismantle the Act, we could now begin to build up a lobby of opinion to support it which goes far beyond the legal profession. That would not have been the case in 2000.’


Grania Langdon-Down is a freelance journalist