“FIGHTING FOR YOUR RIGHTS – THE CASE FOR THE HUMAN RIGHTS ACT”

Amnesty International, Eastern Region

Annual Conference Norwich

Saturday 27th March 2015

David Mead Professor of UK Human Rights Law

d.mead@uea.ac.uk @seethingmead

• How does the HRA work?– changes how judges interpret

statutes– imposes greater duties on

“public authorities” – e.g. councils – when exercising discretionary powers

• What does it not do?– ECHR is not “higher law” &

neither is Strasbourg Court– Judges not bound to follow

ECHR– ECHR not directly enforceable

in same way as EU Law is – not “incorporated”

What’s all the fuss?

Who’s to blame?

Is the case against proven?

Why support the HRA?

“We are a Party that supports real human rights. A Party that abhors the terrible things done in countries like North Korea ... a Party that will always fight to support change that ends the brutality of dictatorship around the world. But the human rights laws in our courts have moved a long, long way away from that. It is crazy that someone who poses a terrorist threat to this country should be able to claim their human rights to stay here. It is unacceptable that human rights laws should back those who break our immigration and planning rules, and yet all too often ignore the rights of our own people. And we should not be told by an international court, accountable to no one in this country, that we have to give votes to prisoners and stop sending the most brutal murderers to prison for the rest of their lives.” Chris Grayling, speech to Conservative Party Conference 30 September 2014

So what’s all the fuss? Strasbourg mission creep Undermines domestic judges Undermines parliamentary

sovereignty HRA goes far beyond UK’s

obligations under the ECHR Rights without responsibilities Encompasses even trivial claims Extra-territorial effect hinders army

in theatre

Unelected judges Villain’s charter Security concerns

Who’s to blame?

• Labour party politicians• Strasbourg judges• Domestic judges• The human rights “industry”

Might we add to the mix ...• Tabloid newspapers

Is the case against proven?• Flawed premise

– Qualified rights in Arts 8-11 contain responsibilities

– ECHR judges are elected

• Mistakes of law– Strasbourg law does not bind UK Supreme Court– Strasbourg has never ruled against life

sentences– What about devolved nations?

• Misconceptualising problem– European Court cannot become “advisory”– Human rights are necessarily undemocratic

• Misunderstandings and myths– Prisoner voting– Villains’ charter– National security concerns

• Misrepresenting the target– Is HRA or ECHR the problem? The role of Art 46– Increasingly greater parity b/w UK & Strasbourg– EU Charter of Rights

• Matters of judgement– Mission creep or developmental & foreseen?– What does “serious” mean?– Interpretation IS a problem but...

Apart from the sanitation, the medicine, education...

In principle, the HRA ...• Guarantees everyday protection • Constrains governmental action• Avoids rule by the majority• Provides a touchstone

In terms of realpolitik ...• Misplaced foreigner-criminal-terrorist

narrative• The Groucho Marx problem

How has the HRA helped?

•Michael v C/Constable of S. Wales [2015] UKSC 2

•DSD v Metropolitan Police [2014] EWHC 436•Dora & Simon (BIHR case study)•Balbir (BIHR case study)•Warren v Care Fertility Ltd [2014] EWHC 602 •P v Cheshire West Council [2014] UKSC 19• Janah v Libyan Embassy [2015] EWCA Civ 15•R (HC) v Home Secretary [2013] EWHC 982•Mid-Staffs Hospital Inquiry and compensation•Effective investigations into deaths

Some further material• The Conservative policy document can be found here

http://www.theguardian.com/politics/interactive/2014/oct/03/conservatives-human-rights-act-full-document

• Chris Grayling’s piece in ConservativeHome is here http://www.conservativehome.com/platform/2014/10/chris-grayling-mp-our-plan-to-protect-human-rights-while-making-the-european-court-advisory-only.html

• The most recent pro-reform/repeal contribution to the debate, itself heavily criticised, is this Civitas paper last week http://www.civitas.org.uk/press/PRtheproblemwithhumanrightslaw.html

• Dominic Grieve’s views are here http://www.ucl.ac.uk/constitution-unit/constitution-unit-news/031214a and herehttp://www.prospectmagazine.co.uk/politics/human-rights-act-why-the-conservatives-are-wrong

• Two readable academic blog critiques would behttp://ukconstitutionallaw.org/2014/10/07/alison-young-hra-howlers-the-conservative-party-and-reform-of-the-human-rights-act-1998/http://publiclawforeveryone.com/2014/10/03/my-analysis-of-the-conservative-partys-proposals-for-a-british-bill-of-rights/

• Criticisms by former government lawyer Carl Gardner are here http://www.headoflegal.com/2014/10/03/protecting-human-rights-in-the-uk-the-tory-human-rights-plan/