The Human Rights Act 1998 has been a PR disaster. Rights once rightly seen as distinctively British are now seen as a foreign imposition. They have been labelled as giving rights to foreigners, terrorists and traitors. So Dinah Rose QC set the scene for her robust defence of the Human Rights Act on Tuesday 28 October.
Rose outlined the development of fundamental rights in English legal history, making the case for the Human Rights Act calmly and with the persuasive force of the oncoming tide. She started with a reminder of Lord Mansfield’s judgment in Somerset’s case in 1772. His words not only marked a step toward the abolition of slavery but articulated the concept of legality in English Common Law. Rose argued that Blackstone’s Commentaries, a vital reference within our uncodified constitution, take that articulation further with their endorsement of the fundamental rights of security of person, liberty and property supported by the Powers of Parliament, Royal Prerogative and its limits, and Access to Justice.
The crux of the lecture was if, given our own trend of developing fundamental rights in common law, we need the Human Rights Act and why? She identified two possible justifications; to plug gaps in the common law canon, and to provide a constitutional framework for those rights we have. As she noted, the Human Rights Act and European Convention on Human Rights (ECHR) are generally more limited than common law. Based on the Al Rawi case, she used the example of the right to a fair trial where in common law all evidence must be presented to all parties, whereas the ECHR countenances redaction and secrecy. Her argument was that there is only one area where the common law rights are less than those on statute: the area covered by Article 8, the right to a family and private life.
For Rose it is the second justification that is the root of the problem, that the ECHR and Human Rights Act have challenged the constitutional supremacy of Parliament. However here her argument is simple, it was Parliament itself that passed the Human Rights Act and for the courts to implement it is merely to do the will of Parliament. In fact, the Act has muted the tendency of the courts to apply legality, and has thus weakened traditional common law fundamental rights. Her example was the Justice and Security Act, a response to the Al Rawi case, which permits secret procedures against common law tradition.
The audience was drawn to the conclusion that the real constitutional issue is not with the Act or with common law rights but with a lack of understanding of those three auxiliary rights expressed by Blackstone. Whilst the courts respect the sovereignty of Parliament, access to justice has been eroded within Parliament and the executive. Over the past years there have been public criticisms of rulings but Rose also drew on the ability for expert witnesses from charities to give evidence. She highlighted the government’s proposal that any interveners should pay their own and the government’s costs, regardless of the outcome of the case. Rose was adamant that it is unconstitutional for the government and Parliament to seek to fetter the discretion of the court when managing a challenge to the government.
There was clearly a lot of support for her argument. When asked why not have a Bill of Rights that leaves Parliament sovereign her clear response was that the Human Rights Act already does that. The audience was given a direct, coherent and calm argument that the current proposals not only need to be reconsidered, the government should go back to first constitutional principles. In short, instead of overhauling rights we’ve built over centuries, they should conserve what is valuable from our tradition.
Many thanks to Helen for this great review of the Politeia event: What’s the point of the Human Rights Act? With Dinah Rose QC. Helen is a GDL student at City Law School.