16 June 2006
From protecting care home standards to saving people from torture, the Human Rights Act touches on all aspects of public life. Yet it is under fierce attack. Nick Pearce examines why
In the rear-view mirror of history, the first Blair government of 1997–2001 will be regarded as a great constitutional reforming administration. The landmark achievements of that era – including the creation of a Scottish Parliament, Welsh Assembly and Greater London Authority – are now unassailable, settled firmly in British public and institutional life. Only one remains vulnerable to repeal: the 1998 Human Rights Act.
As the recent row over the deportation of foreign nationals shows, the Act has not been successfully embedded in our constitutional arrangements, political culture or public consciousness. It is now associated in the public mind with everything that is un-British and unpopular: asylum seekers, terrorists, travellers and the European Union. Through a discursive reframing that boggles the liberal Left mind, the very language of human rights has come to symbolise the inhuman: bombing, hijacking and child abuse.
How did this happen? What has made this centrepiece of constitutional reform so apparently alien and vulnerable to abolition?
The most important reason is that the Human Rights Act never constituted a British Bill of Rights. It was a piece of elite policy making, not the outcome of popular reform. In Scotland, pressure for devolution built up over a number of years, driven by grassroots organisations, political activists, the churches and trade unions. No such groundswell of support led to the passage of the Human Rights Act. It was framed by constitutional experts, lawyers and politicians, not the broader public.
Yet human rights are not alien to British traditions. The leading proponent of the Act, Professor Francesca Klug, has convincingly delineated our island's human rights story, from the Magna Carta – often referred to as the first human rights document – to the 1689 Bill of Rights and the role played by British jurists in drafting the European Convention on Human Rights.
It is an intellectual as much as a political history; witness the centrality of rights to the work of some of our greatest political thinkers, from John Locke to Tom Paine and Mary Wollstonecraft. Moreover, it is history of which we can be proud. Through this lineage of thought and action, Britain has influenced the constitutions and rights legislation of much of the world.
But Britain also has other traditions, of civic service, duty and obligation. They express virtues of solidarity and commitment to others that are hard to capture in rights discourse. They spring from bonds of community, not the statute book. Yet we have not given institutional form to these virtues in the same way as we have given legal expression to our human rights. So our public debate feels unbalanced.
This suggests a series of challenges for policy-makers. Our starting point must be a robust defence of the concept of basic human rights. As legal philosopher Ronald Dworkin, a professor at University College London, has recently argued, a basic human right, such as the right not to be tortured or killed, cannot be traded against the rights of the wider community without losing all meaning. It simply ceases to be a human right. If we accept that basic human rights are negotiable, then we have abandoned the terrain on which our legal and political system is built.
At the same time, however, we have to show how these rights are embedded in our traditions and values. Human rights are 'deep common law rights', expressing moral principles and sentiments that have developed throughout the course of British history. They should be understood and taught as such in citizenship education for school children and those applying for British citizenship.
Human rights legislation has also been used to defend and promote values of dignity and fairness that we hold dear. Although recent media reports would suggest otherwise, the Human Rights Act is not a charter for criminals. It imposes a minimal obligation on public authorities not to breach convention rights, and this protection has been used to improve standards of public service for vulnerable groups. For example, residents must now be consulted before care homes are closed, and nursing guidelines have been changed to ensure that hoists are not automatically used for severely disabled people. There are other examples of the use of the Act to sustain an 'ethical bottom line' in public services.
But we also have to recognise the limitations of rights discourses. Human rights provide for basic, minimum standards. They do not give us an account of equality or social justice that can be used to frame public policies, for example in setting targets for schools or establishing priorities for health expenditure. Substantive commitments to equal opportunities and fairness in outcomes should guide policymaking in these areas, not an elevated notion of human rights. This case was made in the interim report of the government's Equalities Review, chaired by Trevor Phillips.
Duties and obligations must also find more concrete expression in our laws and institutions. Human rights legislation does imply a correlate duty for every right (my right to family life depends on my neighbour not committing foul, antisocial acts all day long) but it is too thin to sustain the full richness of civic life. We should explore new means to give institutional life to our duties, such as a youth citizens' service or measures that strengthen our democracy, such as the duty to cast a vote.
The further implication of this argument is that we have to find a better balance between jurisprudence and democratic law-making. The Human Rights Act was born of a more optimistic, pre-9/11 era. Its proponents could not have anticipated the threats, fears and anxieties of contemporary Britain. In this hostile climate, judges have used the Act to protect civil liberties and enforce observation of basic human rights in executive decision-making processes. But, as a result, it has strained the relationship between the judiciary and executive and heightened constitutional uncertainty over their respective roles. The judiciary is over-active in some areas, while the executive is unconstrained in others. Parliament is largely absent from the equation.
Without a written constitution we lack any agreed statement of principles on the respective roles of judges and politicians. Instead, we have convention and precedent. But the evolving state of executive-judicial relations and the shift from a political to a quasi-legal unwritten constitution suggests that a statement of constitutional principles is needed to clarify the roles of the three branches of government. The concordat between the government and the judiciary (drafted after the government announced the creation of the Supreme Court by press release after a reshuffle) does not suffice, as recent rows have shown.
At present, parliamentary sovereignty in our lawmaking is theoretically maintained by the device of a Declaration of Incompatibility, by which judges can declare that legislation is incompatible with the Human Rights Act but not strike it down.
In practice, a Law Lords ruling of incompatibility is enough to force the government to revise the law, particularly as claimants have the possibility of further recourse to Europe. The executive could reject such declarations – notably if it involved a law for which there was significant public and political support – but that has not yet happened. The situation is not a stable one.
Parliament's role in holding both the executive and the legislature to account should be strengthened. Powerful, well-resourced select committees are one option. And parliamentary confirmation hearings for judicial appointments, to preserve a political veto, are another. Alternatively, the Supreme Court could hold an annual session with a specially constituted parliamentary committee.
The final lesson of recent events is that judges also need to engage in public debate in a media-friendly, modern way. In contemporary societies, we cannot insulate institutions of our democracy from the deliberative forums of the public sphere, in its widest sense.
Nick Pearce is director of the Institute for Public Policy Research
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