Homing in on Human Rights Human rights expert and academic, Professor Francesca Klug shares the story of her involvement in helping to draft the model for the Human Rights Act and reflects on its future, on this its 15th anniversary. This blog is written by staff at the British Institute of Human Rights using edited and abridged extracts from Professor Klug’s book ‘A Magna Carta for all Humanity: Homing in on Human Rights’ (Routledge, 2015) with the kind permission of the author. When I first came across the 1948 Universal Declaration of Human Rights (UDHR) twenty-five years ago I was startled. I had rarely read a document more lyrical and inspirational. Exploring further, I came to appreciate that the European Convention on Human Rights (ECHR) was a direct descendent of the UDHR, incorporating many of its standards and values. When the Human Rights Act (HRA), which in turn incorporates the values and standards in the ECHR, was introduced as a bill of rights in 1998, it seemed that the ethics of universal human rights would loom much larger in our legal and public life. To some degree it has, but its impact has also produced a political and philosophical backlash – more on this later. I’ve been asked by a number of people over the years to catalogue the steps that led to the adoption of the HRA in the UK, a country which had hitherto rejected bills of rights as ‘alien’ to the British constitution. In attempting to do so, I draw on my own experience as an occasional advisor to previous governments on bills of rights to track the story of how the particular model in the HRA was adopted. Our journey to the HRA In 1989, when I joined Liberty as director of their research arm (the Civil Liberties Trust) there was considerable anguish at the ease with which cherished rights and freedoms, seen as emblematic of British democracy for generations, were being extinguished with no constitutional means of challenging their demise. Cases such as Smith, concerning the ban on gay men and women from serving in the armed forces, demonstrated that the common law had been unable to keep up with modern times to provide protection in situations that were unimaginable a generation earlier. As Jonathan Cooper, junior council in the case, saw it: “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.” I worked with others on a draft bill of rights, published in 1991, labelled A People’s Charter. With a nod to what we saw as the legitimate unease about ‘the democratic deficit’ in judicially entrenched bills of rights, the executive, legislature and judiciary were each apportioned a role in its enforcement, but Parliament would have the ‘final say’. No one took the over-complex and ultimately unworkable, proposals in A People’s Charter too seriously. This gave us the chance to work on the model some more. The 1993 Labour Conference adopted a statement, introduced by the then Shadow Home Secretary Tony Blair, supporting a two pronged strategy - an all-party commission to ‘draft our own Bill of Rights’, following a first stage bill of rights based on the incorporation of the ECHR into UK law. Before the conference, I had been dispatched to meet Blair. The first thing he told me was that he had previously written in opposition to bills of rights but was willing to look at a model which didn’t overturn parliamentary sovereignty. In my capacity as Senior Research Fellow of the Human Rights Incorporation Project at Kings College London I, along with other academics, was asked to advise Jack Straw, who was by then Shadow Home Secretary following the untimely death of John Smith, and the election of Tony Blair as Labour Leader. The challenge we were asked to address was to work up an approach for incorporating the ECHR into UK law which would hold the government to account whilst crucially leaving Parliament with the last word on what the law should be. The search for a solution culminated with the recommendation that ‘where courts cannot interpret’ statutes ‘to conform with the Convention, it is proposed that they be given a specific power of declaration... that, in their view, an Act of Parliament (or section of it) breaches the Convention.’ As the 1997 election dawned, it was increasingly obvious that shadow cabinet members with a constitutional reform brief lost any appetite they might once have vaguely had for an unspecified ‘second stage’ bill of rights. After the 1997 election, pressure was placed upon the Blair Government by some Home Office civil servants and Downing Street advisors to tone down the intended impact of the proposed HRA. The public presentation of the HRA by the Government generally became one of incorporation of the Convention in order ‘to enable people to enforce their Convention rights against the state in the British courts…In other words to bring the rights home’. When I was first shown a copy of the well-drafted Human Rights Bill on the eve of its publication, my initial reaction was relief that the square had been circled regarding parliamentary sovereignty without blunting the Bill’s cutting edge. This had been addressed by section 4 of the HRA which, as we had proposed, allows the higher courts to ‘declare’ that an Act of Parliament breaches the rights in the HRA, but not to overturn it. It is then for Parliament to decide whether, and if so how, to respond. The executive, legislature and judiciary would all have a role in protecting human rights. Most creatively, it was to be unlawful for public authorities, including the courts, ‘to act in a way which is incompatible with a Convention right’. This signalled that there was expected to be a culture shift towards greater understanding of and respect for, human rights in the public sector to empower people to ‘negotiate’ rather than have to necessarily ‘enforce’ their claims under the HRA. The Impact of the Human Rights Act In the early, relatively optimistic days of the HRA some public authorities and inspectorates took seriously the obligation on public authorities not to act incompatibly with the HRA; the prisons and mental health inspectorates, the Association of Chief Police Officers, the Northern Ireland Policing Board, the Parole Board and the Audit Commission amongst them. In 2009 Sir Hugh Orde, the outgoing Chief Constable of the Northern Ireland Police Service and incoming President of ACPO, called for the Human Rights Act to be put at the heart of British policing: “There is a myth that human rights prevents good policing...we haven’t been stopped doing the policing we need to do by human rights. It has helped us… A human rights emphasis will make us shape our services around what people have a right to expect in terms of protection, reassurance and the defence of civil liberties.” Whilst the profound cultural change amongst public authorities that some had predicted in the HRA’s early days has not materialised, an Equality and Human Rights Commission Inquiry into the impact of the HRA concluded that ‘where public sector providers had adopted a “human rights approach” to service delivery…they reported improved services...and heightened staff morale.’ For some commentators the legal and extra-legal effects of the HRA have been much too extensive, for others they have not gone far enough. Depending who you believe, the HRA is either a wolf masquerading as a sheep, or a sheep masquerading as a wolf. A new bill of rights? Just over a decade since the HRA came into force the coalition government established a Commission to consider replacing the HRA with a British Bill of Rights. It is, of course possible to draft a bill that builds on the HRA and is stronger in enforcement powers and broader in scope. There are many good examples to draw from. But, unusually in the history of bills of rights worldwide, most of the pressure for a ‘British Bill of Rights’ comes from those who wish to reduce the scope of the judiciary because, in the words of the Prime Minister ‘it is about time we ensure that decisions are made in this Parliament rather than in the courts’. This is despite the fact the HRA already leaves the last words with parliament and does not require the legislature to change the law, even when judges declare that statutes breach human rights. The eminent QC Rabinder Singh, who has frequently acted on behalf of governments, has described the HRA as ‘a success story from a legal perspective. It has not been a damp squib. Nor has it overwhelmed the legal system.’ Although most of the cases where the HRA has been cited would have been taken anyway, many of them would not have achieved the same results. The Prime Minister maintains he is committed to ‘proper rights,’ but that ‘they should be written down here in this country’, signalling that for the first time since the second world war a mature democracy may seek to introduce a bill of rights in order to distance its legal system from international human rights law. This could mark a new departure in the history of bills of rights and lead in a direction that the prominent Conservatives who once called for a UK bill of rights, based on the European Convention on Human Rights, could scarcely have contemplated. Francesca Klug is Visiting Professor at the Centre for the Study of Human Rights, LSE and a trustee of the British Institute of Human Rights.