The Human Rights Act 25 Years On

This article is the first of two which explore the impact of the Human Rights Act as it reaches 25 years old. The articles are a prelude to the publication of the 5th edition of Rights in Progress – a Guide to the European Convention on Human Rights and the Human Rights Act by the Law Centre which was funded by the Law Society of Northern Ireland. The first article explores the role of the European Court of Human Rights and assesses whether some of the criticisms hold water when examining judgments in practice.

Introduction

The Human Rights Act 1998 (‘the Act’) is now 25 years old. Coming into effect from 2 October 2000, there was speculation that the Act would change the domestic legal landscape beyond recognition.

In practice, the impact of the Act has not been quite so seismic. Nonetheless, it has received fierce criticism, initially from its architects – the Labour government and, more recently, the previous Conservative administration. In particular, it has been argued that sovereignty has been ceded to the Strasbourg Court and unelected Judges.

In June 2022 the (then) Conservative government indicated it would repeal the Act and published its Bill of Rights. The President of the Law Society for England and Wales at the time, I. Stephanie Boyce, described this Bill as ‘presenting a grave challenge to the UK human rights law’ and that ‘it would reduce government accountability and shield public bodies from scrutiny.’ Ultimately, the Conservative government shelved the Bill.

The current Labour government, while not seeking to repeal the Act, has also signalled its desire to amend the Act to cover Article 8 (the right to family life) in order to make it easier to deport individuals in certain circumstances. More recently, the UK Reform party signalled its intention to leave the ECHR if it ever gained power. To date, the only countries to leave the Council of Europe and the Convention are Greece after a military coup in the 1970s, and Russia shortly after its invasion of Ukraine in 2022. While the immediate future of the Human Rights Act remains secure, it is not certain that the Act will not be amended and diluted in parts, and it remains politically contentious.

The Convention and the application of principles

The European Convention on Human Rights is an international treaty of the Council of Europe. It was adopted in 1950, was ratified by the United Kingdom government in 1951 and entered into effect in 1953. Alongside the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and the UN Convention Against the Discrimination of Women (CEDAW) the Convention allows individuals, voluntary organisations or other social groupings to petition the European Court of Human Rights to argue that they have been the victims of a breach of one or more articles of the Convention.

A number of key principles underpin the interpretation of the Convention. The role of the Court in reaching its decision is not to substitute its own assessment for one carried out by a domestic court. Instead, the Court examines whether the individual state has applied the Convention appropriately. The Court gives individual countries a ·margin of appreciation (discretion to take account of cultural traditions and values) when considering the scope of some of the human rights contained in the Convention. The extent of the margin of appreciation afforded by the Court will depend on the context. Generally, a wide scope has been given to issues of national security, taxation, moral questions and social and economic policy. On the other hand, a narrow margin of appreciation has been afforded in cases concerning criminalising homosexual conduct between consenting adults, freedom of speech concerning political debate or matters of public interest.

In addition, the Court will consider whether there is a general consensus on how particular issues are dealt with across the European countries see Petrovic v Austria (1998). Moreover, the Convention is interpreted as a living and evolving document. The Court will take into account developments in social attitudes and social provision within individual states and across signatory states as a whole and has adopted a mantra within judgments that rights must be ‘practical and effective and not theoretical and illusory’ see Goodwin v UK (2002) para 74.

The Court also regularly examines the legality of any restriction on a Convention right by considering whether the restriction has a legitimate aim, corresponds to a pressing social need and is necessary and proportionate.

The application of the proportionality test varies according to the type of issue under review. A strict approach is adopted when questions of freedom of expression arise: see Sunday Times v UK (No 2) (1979), or intimate private or moral matters: see Dudgeon v UK (1981).

On property issues, a less rigorous test is applied; namely, whether there is a reasonable relationship between the interference and legitimate aim pursued or a fair balance has been struck between the competing general community interests and individual interests at stake: see James v UK (1986), Hatton v UK (2003) and JA Pye v UK (2008). This is further reflected in the Grand Chamber judgment of MA v Denmark (2021), which outlined that when assessing proportionality, the Court will pay particular attention to the quality of Parliamentary and judicial review in determining the necessity of the measure and the margin of appreciation given to the national authority.

In all situations, the Court looks carefully at whether the restriction impairs the very essence of the right contained in the Convention. Where this occurs, the Court will often overrule a restriction applied in an individual country.

Judicial approaches

The relationship between the judgments of the domestic and the Strasbourg Court has evolved over time. In Ullah v Special Adjudicator (2004), the House of Lords held that while not strictly bound by Strasbourg cases, courts should do so where there is a clear and constant line of Strasbourg judgments unless there are special circumstances to justify not doing so.

Specifically, the Lords observed the duty of national courts is ‘to keep pace with Strasbourg jurisprudence as it evolves over time, no more, but certainly no less’. The legitimacy of this approach was endorsed in JR87 (2024) by the Court of Appeal in Northern Ireland: see paras 58 and 59. There are examples of the Supreme Court not following Strasbourg case law, for example, R (Quila) v SoS for the Home Department (2011) (paras 35-43). Moreover, in R v Horncastle (2009) the Supreme Court took a different view to the Strasbourg court in Al-Khawaja v UK (2009), which had held that unless the accused had an opportunity in a criminal trial to cross-examine the person making the statement, reliance on such evidence was contrary to Article 6 (the right to a fair trial). The Supreme Court did not follow this approach in Horncastle in upholding convictions for serious criminal offences based on evidence from victims’ statements where one had died and the other did not give evidence due to fear. Ultimately, the appeal to the Grand Chamber was deferred until after the Horncastle judgment. Al-Khawaja v UK (2011) GC then overturned its earlier decision that the use of hearsay statements playing a decisive role in a criminal trial was not inevitably a breach of Article 6. A further illustration of this two-way process can be found in the approach to the imposition of whole life sentences on prisoners: see Hutchinson v UK (2017) GC. In particular, the primary responsibility for protecting rights in the Convention lies with the domestic authorities: see para 71. This trend in judicial deference at Strasbourg can be seen, most recently in the judgment of the Grand Chamber in Nealon and Hallam v UK (2024).

The courts in the United Kingdom had begun to allow arguments based on other international human rights conventions to be introduced in limited circumstances, even though such Conventions have not been incorporated into domestic law.

However, the Supreme Court in its decision in R (SC, CB and Others) v SoS for Work and Pensions (2021) held at paras 74-84 that it is not appropriate for domestic courts to decide whether obligations have been breached from unincorporated international human rights treaties, including the UN Convention on the Rights of the Child, on the basis that unincorporated international treaties do not form part of UK law. The Court in Strasbourg has also reiterated that its jurisdiction is limited to ensuring the Convention is adhered to and does not extend to ensuring compliance with other international treaties though it observed that it had ‘consistently held that the Convention should be interpreted, as far as possible, in harmony with other rules of international law’, see Verein KlimaSeniorinnen Schweiz and Others v Switzerland 2024 (GC) at para 455. Moreover, in this case, the Grand Chamber also clarified its role in terms of holding that:

‘judicial intervention, including by the court, cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government. However, democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the rule of law. The remit of domestic courts and the court is therefore complementary to those democratic processes. The legal basis for the Court’s intervention is always limited to the Convention, which empowers the court to also determine the proportionality of general measures adopted by the domestic legislature.’ (para 412).

The Act has received enormous criticism, often populist and ill-informed. In practice, the role of the Convention and the relationship with domestic courts is considerably more nuanced than the public debate would suggest. There is little evidence that domestic courts are in thrall to Strasbourg. Instead, the Act has made a significant and valuable contribution to the development of law and policy because of individual judgments. The Act has helped to publicly cement the link between domestic and international human rights legal instruments; placed human rights at the forefront of administrative decision-making by government departments and other public authorities; helped promote a rights culture, and reinforced the importance of proportionality in decision-making. It has meant that human rights cases are almost always dealt with on the domestic stage rather than at Strasbourg. This is considerably easier for applicants and ensures that the UK is less often exposed on the international stage through human rights judgments.

Les Allamby, Solicitor and Former Director of Law Centre (NI) and Former Chief Commissioner of the NI Human Rights Commission