On the 66th anniversary of the adoption of the Universal Declaration of Human Rights, human rights in the UK are under threat.
Today, International Human Rights Day, marks the anniversary of the adoption of the Universal Declaration of Human Rights by the United Nations General Assembly in 1948. Yet 66 years later, human rights in the UK are under threat.
The declaration enumerated the ‘inalienable rights of all members of the human family’ which ‘should be protected by the rule of law’. Building on this foundation, the European Convention on Human Rights established a system of collective enforcement, which empowered the European Court of Human Rights to issue binding judgments at the instance of individual victims of violations.
But the court is a remedy of last resort: the convention charges national authorities with the primary responsibility to ensure that law and practice comply with convention rights, and national courts with the task of providing effective remedies for violations. British constitutional lawyers were major contributors to the drafting of the convention, and the text of the substantive rights has been reproduced in the constitutions of many of our former colonies. There are now 47 signatories to the convention – all of Europe except the Vatican City, Belarus and Kazakhstan.
The UK accepted the jurisdiction of the court in 1966, but it was not until 1998 that the convention was given domestic effect. There was bipartisan support for the Human Rights Act (HRA), which obliged public authorities to act compatibly with convention rights; and the devolution legislation required the devolved governments to act consistently with those rights. Since the HRA came into force British judges have been ruling on the compatibility of state action with human rights, and far fewer substantive cases now go to Strasbourg.
This important constitutional settlement is now under threat. The HRA and the whole notion of human rights have been criticised on the back of a handful of unpopular and largely misreported decisions of the Strasbourg court and our own courts. So, for the record, the courts have not decided that prisoners serving whole life sentences must be freed, nor that all prisoners must have the vote; and, contrary to popular belief, compensation awards under the HRA have been few and modest.
The story less often heard is of the positive effect the HRA has had on ordinary people, in particular the most vulnerable in our society. The act affords victims of crime important rights – in relation to both the duties of the police towards them and the obligations of the courts and prosecuting authorities during the criminal process. Victims of phone hacking have used tort of breach of confidence which the courts have developed to afford protection of the right to respect for private life.
Victims of people-trafficking have a right to require that action be taken against their exploiters. Children have an enforceable right to protection by local authorities. Service personnel have a right to sue the Ministry of Defence over inadequate combat training and equipment.
Yet largely on the basis of myth, the HRA now faces repeal under a future Conservative government. It would re-enact the rights with qualifications; make the rights subject to responsibilities; prevent the courts hearing claims deemed ‘trivial’; limit the HRA’s territorial effect; and make Strasbourg’s rulings advisory. These changes would mean that our law no longer reflected the universal standard which the convention guarantees. More cases would have to be decided in Strasbourg rather than by our own judges, the very opposite of the ostensible aim. Coupled with the government’s proposed restrictions on judicial review, this represents a serious assault on the rule of law.
Moreover, the Council of Europe could not accept dilution of the authority of Strasbourg rulings without undermining a fundamental feature of the convention system of collective enforcement. This proposal would therefore inevitably lead to our having to abrogate the convention and leave the Council of Europe.
Ask the question what makes us British and most people would include a commitment to fairness. This government now requires schools to promote ‘British values’, which include democracy, the rule of law and individual liberty. The Foreign Office human rights report speaks of making support for action to promote and protect human rights as universal as the rights themselves. The proposed reforms diminish our standing to speak up for human rights, suggesting that we regard them as primarily for export.
Leaving the convention system would set a shameful example, to be relied on by any state that regarded criticism of its human rights record as interference in its internal affairs. As part of its campaign to uphold the rule of law, the Law Society’s council has resolved to defend the HRA and resist restrictions on judicial review. Through its Human Rights Committee, the Society hopes to raise awareness of the importance of rights that are, in the words of the foreign secretary ‘the most precious thing we have in common’.
Stephen Grosz QC (Hon) is a senior consultant at Bindmans and Chair of the Law Society’s Human Rights Committee