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The Human Rights Act: Repeal at Our Peril

06/10/2014 11:58 BST | Updated 04/12/2014 10:59 GMT

The 1980s was a watershed decade. From the perspective of human rights, it was the decade when the United Kingdom (UK) began the process towards the successful shift from a system of government premised principally on civil liberties to one that recognised that the human rights of all within the jurisdiction also needed to be promoted and protected.

This may seem a bold statement, but it can be justified with reference to, amongst other things, the AIDS crisis which dominated that decade. For those who did not live through it, it is almost impossible to conjure up the fear, hysteria and hatred that surrounded HIV/AIDS and which was aimed at those most vulnerable to it: gay men, injecting drug users and people with haemophilia.

The AIDS crisis touched virtually every aspect of law, yet the law's response was, at best, muted and at worst ineffective at protecting those most affected by it. In the absence of an effective human rights regime, people could be detained, they lost their jobs, were made homeless, were deprived of their property, and were excluded from so many areas that society takes for granted. They had their privacy invaded and were subjected to a level of hate speech which fomented violence and forced many to conceal their status or reject testing altogether. Medical confidentiality could not be guaranteed and healthcare did not seem prioritised. In many instances people died a frightened, lonely death. The failure of the legal framework in the 1980s to respond to HIV/AIDS is best summed up as a failure to recognise the dignity of those swept up in it.

In 1987, I was wholly unqualified for the job, but I was appointed AIDS Co-ordinator of the Haemophilia Society. I was about to experience first-hand the failure of the law to assist those living with or directly affected by AIDS. People with haemophilia were infected with HIV through the use of contaminated blood products. The political process granted them an ex gratia payment; the law, apparently, could not compensate them. They also experienced heightened levels of discrimination. Kids were excluded from school; women would be encouraged to terminate their pregnancies and in one instance (known to me) subjected to sterilisation; already living with a chronic genetic condition, most subsisted on low incomes and could barely manage the cost of living with AIDS. Perhaps most importantly, the haemophilia community was caught up in a deferential relationship with their healthcare providers.

It was virtually impossible to formulate legal arguments to remedy the problems that this community and all of those affected by HIV/AIDS were exposed to. And then, in 1990, very much inspired by Paul Sieghart's work, a group of us within the NGO HIV/AIDS sector drafted a Declaration of Rights for people with HIV and AIDS. This document drew together the rights in international human rights treaties ratified by the UK and applied them to people with or affected by HIV and AIDS. It proved to be a sea-change, but the level of hostility towards the notion that people with AIDS should have rights was extraordinary.

After qualifying as a barrister at Doughty Street Chambers in 1992, I subsequently became involved in a number of cases which highlighted the limits of the UK system of government to protect human rights, from prisoners' rights to protection from discrimination. At about the same time, in 1993, the Labour leader John Smith accepted the principle that the UK 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. And so Labour's pledge to what was to become the Human Rights Act was born.

In 1995 I was working as Legal Director of Liberty. John Wadham was Liberty's Director. By then it was evident that those cornerstones of the UK system of government, Parliamentary Sovereignty, 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). What's more, the majority of violations found against the UK emanated from either primary or secondary legislation, thus highlighting the weak point of Parliamentary Sovereignty. Victims tended to be the most vulnerable and marginalised. They were children, victims of crime (and sexual offences in particular), gay men and lesbians, trans people, migrants, asylum seekers, the Roma and travellers, people with mental illness, people with disabilities and prisoners.

The UK system of 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.

But this was also a period of genuinely exciting human rights activism. Liberty, under the auspices of Andrew Puddephatt, had already hosted its Festival of Rights. Charter 88, chaired by Helena Kennedy, was in full swing and JUSTICE, led by Anne Owers and chaired by the Conservative titan, Lord Alexander, was steadily highlighting the consequences in the criminal justice system and the prison system in particular of the absence of effective human rights protection. Furthermore, the Constitution Unit under the wise leadership of Robert Hazel was producing well-thought-through analysis of options for the UK constitution. Sarah Spencer at the IPPR was doing genuine blue sky thinking. In 1997 JUSTICE advertised for someone to head up its new human rights project. I applied and was appointed. This gave me the opportunity to work with the Human Rights Bill as it passed through Parliament.

It remains a significant regret that at the time the Conservative Party simply wouldn't play ball. 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 that was conceived between Jack Straw, then Home Secretary, Lord Irvine the Lord Chancellor and Francesca Klug (then of King's now at the LSE) was ingenious. It drew wisely from the experience of Lord Lester QC. It is beautifully crafted and all credit for this goes to Sir Edward Caldwell QC. It shared human rights protection across all branches of government. 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 David Maxwell-Fyfe who went on to become a Conservative Home Secretary and Lord Chancellor. 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 Parliamentary Sovereignty, the courts could not dis-apply an Act of Parliament. Courts could only declare Parliament's express intent incompatible with the HRA. And perhaps its most visionary aspect was that, prior to second reading, all new bills would undergo a human rights impact assessment. The scheme and scope of the HRA would become one of the golden threads running through the UK constitutional arrangement, including subsequent devolution settlements.

The HRA is fundamentally conservative. As enacted, the HRA has done and is doing what it was intended to do. Those rights that could not be properly protected under the pre-HRA scheme, from privacy to protest, are now given a clear basis in law. Decisions are now 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 whether it's a decision about access to healthcare, immigration status, the rights of those detained or access to education, the HRA has dramatically improved the quality of decision making. The culture of deference, which facilitated complacency, has been replaced by one of accountability.

The HRA was never intended to replace or circumvent common law. Section 11 of the HRA puts this beyond doubt. Its role is to fill in the gaps left by common law. The HRA has been used by the courts to bring the common law to life. Judges have developed the symbiotic relationship between the common law and the HRA. The common law is thriving.

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. Before we had no privacy and protest rights. We do now. Had the HRA been in force at the time of Hillsborough we would have been spared that agony. The right to life and the obligation to investigate loss of life would have forced the authorities to address all the issues at the time. Peace in Northern Ireland relies upon the HRA applying to everyone involved. Devolution is under-pinned by the HRA. The HRA is critical in keeping the UK together.

Why then is there such hostility towards the HRA to the extent that the Conservative Party now has a commitment to its repeal and is likely to withdraw from the European human rights system? Is it because the rights given effect to by the HRA come from the ECHR and therefore have the word 'European' in them? Is it because the New Labour Government didn't fully engage with the human rights project? The HRA had been in force for less than a year when 9/11 happened; the UK Government's decision to view human rights as a threat under these circumstances rather than a solution was a major error and arguably so undermined their human rights project that it hasn't been able to recover. As successive Labour Home Secretaries opted not to trust the human rights framework, why should anyone else, particularly the then Opposition? This is despite the fact that real security only comes with effective human rights protection.

A final point to raise is one always put so eloquently by Liberty's current Director, Shami Chakrabarti, which is that everyone supports human rights as long as they're their own. It is other people's human rights that some have problems with. The hostility of right-wing media to the HRA reinforces this. And yet, all of those newspapers have relied upon the protection of the Strasbourg-interpreted freedom of expression provisions of the ECHR. And if freedom of expression is the media's golden egg, shouldn't they be careful not to kill the goose? Their often inaccurate scare stories about human rights may end up having unintended consequences. Without the ECHR and the HRA, newspapers' free speech rights would be a shadow of what they now are.

In 2012 the Coalition Government commissioned a review as to whether the HRA should be replaced by a Bill of Rights. Whilst the quality of the legal minds on the Bill of Rights Commission was formidable, however, none of them had daily experience of dealing with human rights issues. Where were the prison governors, the teachers, the council leaders, the ombudsmen and women, the human rights professors and the police officers? The majority on the Commission, with the exception of Helena Kennedy and Philippe Sands, opted to replace the HRA with a Bill of Rights. The reasoning of the majority isn't clear and feels more ideological than practical. Apparently, in their view, the HRA has become so unpopular it needs to be reinvented. This is despite the fact that 96% of those who responded to the Commission's consultation process called for its retention.

So in the next Conservative Party manifesto there will be a commitment for a British Bill of Rights (BBR) to replace the HRA. There will be British rights, not human rights. What exactly they would replace the HRA with remains to be seen. Will there be more rights or fewer (which rights could be taken out)? Will there be some rights that only the British have? Will the enforcement mechanisms be different? Currently, the test is that all law must be interpreted, so far as it is possible to do so, in a way that is compatible with the human rights contained in the HRA. Will the Tories water down this scheme? In which case, the only real losers will be the majority, if not all, of us whose lives have been enhanced by the HRA. In its absence, for example, the likes of Abu Qatada will still have the same remedy not to be exposed to torture and its consequences. Formulating a Bill of Rights will be a headache for the Party and the headlines that they want to avoid will remain. Could this process even take the Conservative Party on a journey whereby they end up challenging the notion of international human rights protection?

Margaret Thatcher understood the UK system of democracy. She may not exactly have embraced the Sex Discrimination Act or the Race Relations Act, but she maintained them, and, by doing so, respected the nature of democratic government. You work with the legacies of the previous regime, particularly in the context of social justice. As there is no evidence that the HRA is not working, Conservatives should be getting on with the government of the UK and respect the well-thought through human rights legacy of New Labour.

I began by reflecting on the AIDS crisis and the failure of law to address it. Now, thanks, in part, to the AIDS crisis and the need to respond to it, we have a system of human rights protection fit for purpose. Living through the AIDS crisis, I came of age to the mantra 'Silence = Death'. It captured the essential intensity of what was happening. We fought for the human rights of people with AIDS. With those rights came a voice and with that voice incrementally the crisis has been harnessed. Now we must all also fight to retain the HRA and lend it our voices. The HRA gives us accountability, but it also gives us dignity.

The HRA = Dignity. I wear it with pride.

This article is based upon a chapter, 'Human Rights: Reflections on the HRA' published in Law Reform 2015 edited by Stephen Hockman QC.

This article is written in the author's personal capacity and as a barrister at Doughty Street Chambers.