In an era when terrorism dominates the public conscience and governments attempt to whittle away civil liberties and public freedoms in the name of security, the Human Rights Act (HRA) celebrated its fifth anniversary on 2 October.
Created to force English courts to interpret the law in a way that is compatible with the European Convention on Human Rights (ECHR), five years in and the legal fraternity seems happy with the results. Moreover, the courts are also under a duty to develop the common law to be compatible with the ECHR.
Conor Gearty, director of the Centre for the Study of Human Rights and professor of human rights law at the London School of Economics, labelled the introduction “successful”.
“It offers strong judicial protection of human rights in the right areas – criminal justice, terrorism – but not leading the judges to be too activist in areas in which they do not belong – economic policy, taxation,” he says. “People are out of jail who would still be being unjustly detained had it not been for the act, and asylum seekers aren’t starving on our streets because of the act.”
“The Government has to think twice before enacting repressive terrorism laws,” he adds.
But Gearty argues that some commentators expected too much too soon from the HRA. “They were wrong then and are wrong to be disappointed now,” he says. “For some people, the HRA was going to lead to a judgebased civilised society, but this was always a fantasy.”
Roger Smith, director of human rights legal lobby group Justice, says the HRA has seen the UK “effectively incorporate a bill of rights”. He adds: “It’s been a fundamental change of the jurisprudence of constitutional law in this country.”
Smith says there was general disappointment with the speed at which some judges were applying the principles, and in some areas, most particularly immigration, he suggested there was a long way to go.
But paraphrasing Chairman Mao, Smith adds: “If it’s still too early to judge the effect of the French Revolution, it’s still too early to judge the impact of the HRA.”
Smith says: “Five years in, where we are now is actually pretty good and reasonable. The judges have broadly got us to a reasonable position.” Although he adds that there are still “some undecided and messy areas”, notably surrounding the roles and responsibilities of public authorities.
Chair of the Human Rights Lawyers Association and Doughty Street Chambers barrister Jonathon Cooper labels the HRA as a “landmark piece of legislation” and says its significance could not be underestimated.
“The HRA has settled into the English legal system very well. It’s all about accountability and it’s working well and holding the Government and public authorities to account,” he says. “Particular interest groups may have differing perspectives into certain aspects, such as immigration lawyers, who have been disappointed, and it has not done as much as we thought on fair trial rights.”
But Michael Smyth, head of public policy at magic circle firm Clifford Chance, has a different view on how to gauge the impact of the HRA. “One measure of success of the human rights legislation is that the area has become commoditised, or institutionalised,” he says. “By that I mean the HRA is something about which every lawyer should know something, if not a lot. You will be negligent if you don’t know about the due process requirements of Article 6 of the Convention if acting for a defendant in criminal proceedings or someone involved in disciplinary proceedings. Now it is an essential part of learning.”
But to the wider public, the HRA remains something to be eyed suspiciously and treated with caution. And the Government, in the name of the War on Terror, is also threatening to water it down.
Tony Blair, when discussing the Government’s proposed anti-terrorist plans, says: “Should legal obstacles arise, we will legislate further, including, if necessary, amending the HRA in respect of the interpretation of the European Convention on Human Rights.”
By far the biggest test of the implementation of the HRA was the case brought on behalf of nine foreigners detained indefinitely at Belmarsh Prison under the Government’s Anti-Terrorism, Crime and Securities Act 2001 (ATCSA).
The landmark moment for the HRA came with the 16 December 2004 House of Lords judgment, which ruled that the ECHR’s rights to liberty and freedom from discrimination overruled the powers of the ATCSA.
Cooper says: “Human rights issues are not easy, but a policy predicated on discrimination is an unlawful one. The House of Lords showed that the Government’s anti-terrorist legislation was discriminatory and unworkable.”
Smith adds: “The issue related to national security and the judges construed the law in a way that impressed me by their boldness and correctness in the decision. It was a very bold decision, but it was the right one in legal terms and right in political terms.”
The right to privacy principles enforced by the HRA were key considerations for the Law Lords when they granted lifetime anonymity to Jon Venables and Robert Thompson upon their 2001 release for the widelypublicised and notorious murder of toddler Jamie Bulger. That decision was not popular, but supporters of the HRA argue it was correct.
Those same privacy principles were taken into consideration when the Law Lords awarded supermodel Naomi Campbell damages in her case last year against the Daily Mirror. Campbell’s damages were just 3,500 after she was photographed leaving a narcotics anonymous meeting in 2002, but total legal costs are tipped to exceed the 1m mark.
But the continued focus on terrorism-related issues is where the HRA will continue to have the most impact in the future. Battles loom over individual privacy versus national security and surveillance, asylum seekers and deportation, where detainees may be subjected to human rights abuses in their home countries.
One crucial case currently before the Law Lords is an appeal by a coalition of 14 human rights and anti-torture organisations on whether evidence obtained abroad from third parties who may have been tortured is admissible in domestic courts.
The Law Lords are hearing an appeal against a 2-1 decision made by the Court of Appeal last year, that the Government was entitled to rely on such evidence in special terrorism cases, as long as the UK “neither procured nor connived at” the torture.
Such is the importance of the case that it is being heard by a panel of seven Law Lords instead of the usual five and Smith describes the case as “an unfortunate area for the Government to try and take on the judiciary”.
The ruling, which is expected before the end of this year, is expected to have an impact on the UK’s attempts to return terrorist suspects to countries with poor human rights records, such as Jordan and Algeria.
These are crucial times for the HRA and its future impact on the UK legal system. In the words of Gearty: “These cases will tell us a lot more about whether the Human Rights Act is real or just for show.”