This is a talk I gave at King’s in 2016 at a conference on the important Ireland v UK forty years on
An odd feature of the Human Rights Act has been its deep unpopularity among politicians. Even before it was brought it into force (in October 2000, nearly two years after Royal Assent), new Labour had begun to disown it, dissatisfied even then with its likely solicitude towards the kind of marginal communities (prisoners; criminals; suspected terrorists; travellers) that its advisers were probably already telling it to get tough on. The Conservatives have pretty well hated it from the start, seeing in its scheduled European Convention rights a whiff of a Continent which their backbenchers and activists increasingly loathe. Even the Lib Dems have been false friends, moaning about the Act’s lack of reach and demanding greater, more fundamental change than its modest provisions could ever hope to have delivered. Maligned right, left and centre, the Act also almost immediately found itself the target of media attack, its right to privacy threatening the commercial interest that many newspapers have in intrusive gossip.
With such a groundswell of criticism from the powerful, it is perhaps surprising that the Act has lasted as long as it has, much less that even its strongest critics now say that what they want is not ‘no rights at all’ (which you might have expected) but rather ‘a new Bill of Rights’. But how can the answer to a disliked law be more (rather than less) of what that measure contains?
The Tories are caught here between xenophobia and neo-conservatism: even their slower members notice there is something odd about Mr Hague and Mr Cameron telling the whole world to embrace human rights – except, that is, the one bit of global terrain over which they have any power. It is hoped that a ‘British’ rights document would meet this point while detoxifying rights of their European influence. It would also somehow at the same time (the details are hardly clear) call a halt to interference from the Strasbourg court, or at least that is the prime minister’s hope. (Someone seems to have told him about the German Constitutional Court and the lack of trouble Strasbourg makes for it and he hankers after the same for Britain.)
It is not clear, however, in what way this new bill of rights would differ from the Human Rights Act. We are hardly going to have a right to food and shelter under this government, and surely the plan is not to grant jury trials as of right for everything (parking offences? speeding?). Maybe the whole idea is just to make it easier to give suspect foreigners away to foreign countries where they can be tortured with impunity? This would certainly be a novel basis for enactment of a bill of rights but the Strasbourg Court – bill or no bill – would be duty bound to stop it. And claims to the contrary notwithstanding, how can that court be cast aside so long as we belong in the Council of Europe? Is expulsion or withdrawal from the Council a price worth paying to ensure a few terrorist suspects can be safely tortured in evil places?
The Human Rights Act may not have enjoyed many defenders in the higher reaches of politics but it has secured for itself an attractive niche within our legal culture. The judges have dealt with it very well and grown familiar with the modest ethical weaponry it has supplied when they have had to confront egregious governmental conduct which might otherwise have escaped scrutiny. So what has it done? To take just a selection: young people have been protected from serious assault in adult prisons; ordinary members of the public have been given at least a modest legal weapon with which to resist the tabloid destruction of their lives; the police have learnt to be more sensitive to the risks posed by violent persons to former partners; coroners have been guided into asking serious questions about suspicious deaths which were never even considered before; same-sex couples have been given a security of tenure on the death of one of them which had previously been denied them; vulnerable people have been given a chance to speak before being thrown out of their homes; above all the Human Rights Act has protected us from a system of internment of foreigners which, without the Act, might by now have become a normal feature of our law. The Human Rights Act does not give prisoners the right to pornography, or lavish meals to hostage-takers, or any of the other nonsensical pseudo-entitlements which its enemies have ascribed to it.
Will the Act survive? Almost certainly yes, at least until the next election and very possibly beyond. The Commission the coalition has asked to enquire into the issue will report in a few months and will almost certainly divide along party lines (as it has been designed to do). The Tories have already begun to create a series of manifesto pledges for a post Lib Dem future, and no doubt repeal of the Human Rights Act will appear as one of the Party’s more prominent promises. The mechanics of its removal will be left to another day, in the hope that somehow or other the complexities of such a change will be resolved by the magic of government. This won’t happen of course. The Tories in power will be as they are now, and as the Labour party was before them – critical of this or that decision of the courts, happy to attack the Act to get a few cheap rounds of applause, but not inclined to follow the logic of such grandstanding into hard constitutional work.
The discussion at Occupy LSX last night was about the role of law in seeking to change the way we understand the society in which we find ourselves.
Interestingly there was far less cynicism about law that there would have been twenty years ago. The excellent David Allen Green produced an anthem to law-adherence which was applauded rather than booed down (as it might have been not so long ago). David was right to remind us that lawlessness is something the rich and powerful are more adept at and able to do with greater impunity, so that we need to be very careful before we write off the rule of law – it remains as David said (quoting the great radical historian E P Thompson) ‘an unqualified public good’.
Why did the rule of law get such an easy ride?
I’d say this is because of the transformation we have seen in the English judiciary in the past two decades, moving from the blind defenders of the status quo that I recall when I first starting teaching civil liberties (in the Thatcher era) to the more nuanced, thoughtful people you encounter on the Bench at the present time.
An example of this was the Occupy LSX appeal in the Court of Appeal (decision on the case due on Wednesday) – it went very well from the occupiers’ point of view:
- They were treated with respect
- Their lawyer (John Cooper QC) was warmly congratulated for having taken on the case
- The human rights issues were given time to be developed
- The individual litigants themselves had the chance of a ‘day in court’ that felt meaningful to them and was not just a charade.
This is all excellent news. But it does not mean that the appeal will succeed. I would still say the odds are stacked against.
And of course the judges might change again, losing the humanity which has marked recent appointments and reverting to hard-nosed type (historically the norm).
As we await the Court’s ruling in the St Paul’s case….
How do we define success?
Already the brave and extraordinary discipline shown by Occupy LSX, the organisational strength of the movement and its intelligent engagement with the issues have marked it out as a triumph. The case – taken against them of course and not by them – has been turned into a public soapbox, giving them a chance to explain their point of view and counter the demonization to be found elsewhere, in some of the Tabloid media, among the more hard-nosed City types and even – saddest of all – in St Paul’s itself where a noisy commitment to social justice has been shown to be risibly skin-deep.
Last night’s event was full of hope – hope that society can be transformed; hope that our culture can find the levels of solidarity that it so desperately needs; hope that equality can be achieved rather than merely spoken about.
But this hope never collapsed into utopian illusion.
Nor did it threaten at any time to morph into a cynical aggressiveness towards a public who refuse to share the dream.
There was an intelligent awareness of the time dreams take to be realised, of the hard work that utopia demands and of the need to be there for the long haul. Minds are not changed by singular actions, however singular. They are changed when society comes to regard these singular actions as the rule rather than the exception, when common sense shifts onto the side of the erstwhile heretic. This can take a long time or happen very quickly indeed. But it can always happen. No situation is so bad that dreams – with courage, determination and patience – cannot be realised.
I was proud to be involved last night and honoured to have been asked to speak.
Well there you are: the European Court of Human Rights has decided not to precipitate a crisis of authority between itself and the UK Supreme Court after all.
In today’s Grand Chamber decision in AL-KHAWAJA and TAHERY v. THE UNITED KINGDOM, the challenge was to UK hearsay law, a law which in certain circumstances allows statements to be admitted in evidence and to play a sole or decisive role in securing a conviction even where they are not made in the course of the trial. The Grand Chamber has now ruled that this does not as such amount to a breach of the Convention’s right to a fair trial (to be found in article 6). The Chamber judgment of the same name which claimed this was wrong; the UK Supreme Court ruling of R v Horncastle  UKSC 14 (with Lord Phillips prominent) which said as much was right, or at least more right than the first version of Al Khawaja and Tahery had been. Of course where such evidence is admitted – with no possibility of cross-examination or testing in open court – then it has to be treated cautiously and where it is the sole or decisive evidence then the court needs to be super careful and check what other safeguards there are to guard against injustice. But crucially there is no automatic breach of article 6.
My colleague at LSE Mike Redmayne is an expert on the law of criminal evidence and with his permission I summarise here his comments to me about the case:
“Well, it’s an interesting judgment. They do a careful job: one of the better ECHR judgments I’ve read. There’s a concurring judgment from Judge Bratza, which sets the context: he welcomes the dialogue with the national court.” (I intervene here to set out exactly what Judge Bratza said: “The present case affords, to my mind, a good example of the judicial dialogue between national courts and the European Court on the application of the Convention to which Lord Phillips was referring., and thinks this is a sensible way to settle things.”) …
Then Mike goes on:
“The majority judgment looks at the law in lots of other common law jurisdictions, giving a more careful review than the Supreme Court did in Horncastle. They also look very closely at the Supreme Court’s arguments, and address them one by one. They don’t concede much. The Chamber judgment was that if hearsay is the sole or decisive evidence against a Defendant, it can’t be used. But the Grand Chamber concede that this is too absolute: exceptionally, hearsay can be sole or decisive and not make a trial unfair. On the facts of the cases, they conclude Al-Khawaja had a fair trial (there was corroborating evidence), but that Tahery did not…. Where that leaves domestic hearsay law is hard to say: but we’re probably left with something like a corroboration rule for hearsay.”
The partly dissenting judgments of Judges SAJÓ AND KARAKAŞ show how this case might have gone.
The Convention gives a defendant in a criminal case a specific right (in article 6(3)(d)) “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” On the view of these dissenters, this represents an unqualified right which cannot be turned into just an element in the general test of fairness already set out in Article 6(1) – “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” But this they complain is exactly what the majority have done. Before today “this Court has never stated that fairness can still be achieved [even] if one of the fundamental rights is deprived of its essence.” They went on: “With regard to the right to cross-examine witnesses and the related but broader equality-of-arms principle, the Court has systematically and consistently drawn a bright line, which it has never abandoned, in the form of the sole or decisive rule.” And then melodramatically but perhaps accurately: “Today this last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness.”
Who is right?
There is certainly a change in that the “sole or decisive” rule is dumped but only on account of its inflexibility. It is still the operating assumption and will be hard to rebut. And whatever about the substance of the case, if the minority had won out there would now be quite a lot of political noise about this silly court and the inflexible insensitivity of its rulings and so on. It’s a relief not to be having to listen to all these pontificating sceptics, and know at the back of your mind that maybe, just maybe, they have a point. Things will probably calm down on the Strasbourg front now, so far as the local political temperature is concerned.
Last word to Mike:
“So on a first look the ECHR come out of this pretty well: they’ve played the Supreme Court at its own game, of carefully reasoned argument drawing on comparative resources, and done a good job. They abandon some of the stupid arguments the Chamber made. And the English courts won’t have to concede much.”
In other words: a score draw after an entertaining match. Strasbourg and the Human Rights Act live to fight another day!