THE BLOG

The Human Rights Act and Preserving the Union

22/09/2014 12:55 BST | Updated 21/11/2014 10:59 GMT

The crucial role played by the Human Rights Act (HRA) in the UK devolution settlements should not be underestimated as the role of the Union and the relationships between its constituent parts are reassessed. Trust was a key issue in the Scottish independence debates and the fact that devolved Scotland, along with Wales and Northern Ireland, as well as the UK government as a whole is underpinned by the HRA counters the argument that Westminster can't be trusted. It may be that we cannot bank on politicians but, since devolution, basic minimal human rights protection can be depended upon. The HRA was part of the brains of devolution. It is the golden thread that links the nations making up the UK together. Regardless of who has power, we all have access to the same enforceable human rights. As the Union is re-thought through post the rejection of Scottish independence, the HRA needs to be protected and preserved.

It is no coincidence that the HRA and devolution emerged at the same time. They were a response to the fact that the UK system of government, at the end of the 20th century, needed to be revived and refreshed. From the perspective of human rights protection, since the 1980s, if not before, it was clear that the way the UK protected rights and liberties, as well as self-determination, was in desperate need of overhaul.

The vulnerable and marginalised were dispossessed. Take people with AIDS in the 1980s: it was virtually impossible to formulate legal and/or effective public policy arguments to remedy the problems that those affected were exposed to; the agony that became Hillsborough would have been avoided if, from the start, the investigation had been in relation to the human right to life; solutions to the greatest Post War crisis facing these Islands, the Troubles, could be found once it was recognised that human rights would apply to everyone involved. It was the same with prisoners' rights, issues affecting people with mental health problems, vulnerable children, people with disabilities, migrants, the gay, lesbian and trans communities, equality rights ... the list continues. Then, in 1993, as Labour formulated its policies for devolution, the Labour leader John Smith accepted the principle that the UK also needed far more effective and judicially enforceable human rights protection and committed his party to some form of human rights legislation. Smith was clear: there needed to be a proper mechanism to protect human rights from an otherwise overly powerful and unaccountable Executive.

It was evident that those cornerstones of the UK system of government, Parliamentary Sovereignty, Scottish law, the common law and the rule of law couldn't guarantee respect for human rights. By the mid-90s, uniquely, the UK had violated all the rights contained in the European Convention on Human Rights (ECHR) with the exception of the prohibition on slavery (although a subsequent violation of this too was found). The cases came from all corners of the UK. What's more, the majority of violations found against the UK emanated from either primary or secondary legislation, thus highlighting the weakness of Parliamentary Sovereignty

Judicial review, in the absence of being underpinned by human rights, in effect cemented in place the system of power in the UK. The merits of a decision could only be challenged if the decision maker was irrational and/or had acted unreasonably. Rightly, in my view, the judges were not prepared to dismantle this system or, for that matter, impose a fully-fledged human rights regime, without the sanction of Parliament.

As with devolution, it remains a significant regret that the Conservative Party at the time did not engage in this need for constitutional review. They simply wouldn't play ball. As far as human rights were concerned, John Major's Citizen's Charter (which was introduced in the early 1990s) was not a constructive contribution to the debate. It was, as Lord Irvine pointed out, 'enervating nonsense'. This lack of engagement is striking when we consider the fact that some of the most eloquent and articulate proponents of human rights protection within the UK have been among the Conservative Party's outstanding legal minds.

The model for the Human Rights Act and its relationship with the devolution settlement was conceived between Jack Straw, then Home Secretary, Lord Irvine, the Lord Chancellor, and the academic Francesca Klug. It was ingenious. Devolution was to be buttressed by the HRA, with human rights protection shared across all branches of government - devolved and central. The rights that were to become part of UK law were only those rights in the ECHR which were already applicable to the UK. The ECHR itself had been drafted by a Scot, David Maxwell-Fyfe, who went on to become a Conservative Home Secretary and Lord Chancellor. The HRA was also fundamentally conservative. The courts of the UK would be expected to take into account the case law of the European Court of Human Rights, but no more than that. Respecting the tradition of Westminster Parliamentary Sovereignty, the courts could not dis-apply an Act of that Parliament. Courts could only declare the Westminster Parliament's express intent incompatible with the HRA. The devolved legislatures were different. Their laws could be dis-applied by the courts.

As enacted, the HRA has done and is doing what it was intended to do across the Union. Those rights that could not be properly protected before the HRA, from privacy to protest, are now given a clear basis in law. Decisions by public bodies are measured against principles of proportionality, thus ensuring higher quality decision making and accountability across the board. No longer can decision makers hide behind the old constraints of judicial review. As a consequence, we have all benefited from the HRA. It may feel imperceptible, but the culture of deference, which facilitated complacency, has been replaced by one of accountability.

Across the UK, children have been the biggest winners, their lives having been transformed on every level by the HRA. Victims of crime and sex offences in particular have also been significant beneficiaries of the HRA. And the other identifiable group whose lives have been altered beyond recognition has been the gay and lesbian community.

With the outcome of the referendum, and promises made during it, can elements of the Conservative Party maintain their partisan hostility towards the HRA? The HRA played its own distinct role in preserving the Union. As the UK enters a new stage in its constitutional arrangements, the human rights of us all need to be at its heart. The HRA's scheme is subtle and respectful of the way that those rights can be guaranteed. Those rights are drawn from a legacy that has its origins in the Magna Carta and the Treaty of Arbroath. They complement the traditions of the UK system of government. They are core to the shared spirit of all the peoples that make up the UK and are best protected by the HRA.

This article is adapted from a chapter in Law Reform 2015: A Manifesto for Change, edited by Stephen Hockman, 2014