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Why our Human Rights Act a beacon of protection for us all

Sir Nicolas is the former President of the European Court of Human Rights, where he was a judge for over 14 years, elected in respect of the UK. He stepped down from his role as Chair of Trustees at BIHR in 2024. An abbreviated version of this article first appeared in The Times on Thursday 4th July 2024.

1998 was a momentous year for the protection of human rights in the United Kingdom and in the wider European society.

It was a year which saw the creation of the full-time permanent European Court of Human Rights in Strasbourg to replace the two part-time bodies, which had previously applied the European Convention of Human Rights for nearly half a century. The new Court for the first time provided an entirely judicial process, to which individuals would have direct access to assert and enforce their fundamental rights under the Convention, an instrument that had served as a catalyst for legal and social change within the then 47 States of Europe, stretching from the Atlantic to the Pacific, with a total population of over 800 million people.

The year, equally importantly, marked the passing of the Human Rights Act in the United Kingdom, whose purpose, as explained in the White Paper which ushered it in, was “….to make directly accessible the rights which the British people already enjoy under the Convention. In other words to bring those rights home.”

As the UK judge of the new Strasbourg Court until 2012, I was, in the early years of its life, an external observer of the Act - I had no responsibility for applying the Act or for interpreting its provisions. However, I was able to examine how the Act had been applied by the national courts in cases which reached the Strasbourg Court. I was also able to view from afar the manner in which the Convention had been interpreted and applied by those courts in reported cases which never in fact reached Strasbourg.

It is I believe difficult to overstate the profound effect of the Act, as applied by the national courts, in upholding and protecting the fundamental rights of those in this country. Baroness Hale, the former President of the Supreme Court, described the Act as “having brought great benefits to the law and to a great many people in this country”. And she was surely right. Under each Article of the Convention – from the right to life to the protection of freedom of expression, from the right of fair trial to freedom from discrimination, from the prohibition of torture and inhuman treatment to the right to respect for private and family life– the courts here have not only been exemplary in achieving the aim of “bringing rights home” but have breathed a new life into the rights guaranteed by the Convention.

They have, through their judgments, developed, fashioned and moulded the Convention rights protected under the Act to make those rights more relevant to our community and an integral part of our national heritage. Those judgments have also had a major influence on the case-law of the Strasbourg Court itself when applying the Convention in other parts of Europe. As envisaged by the
White Paper, through their interpretation of the Convention provisions, national judges have been able to make “a distinctly British contribution to the development of the jurisprudence of human rights in Europe”. While loyally respecting the obligation in the Act to “take account” of the case-law of the Strasbourg Court, the courts here have not seen themselves as bound by that case-law. On some occasions they have declined to follow the European Court, considering that Convention rights had been stretched too far by that Court or that there had been a misunderstanding in Strasbourg of national law or practice. On other occasions, the national courts have, as Lady Hale put it, “leapt ahead” of the international court in affording greater protection for human rights than that currently provided for in the Court’s jurisprudence.

The occasions on which the Strasbourg Court has differed from the courts here have been few and the valuable dialogue that has grown up between the national and international courts has been reflected in the statistical evidence. Since the Act came into effect, providing remedies for breaches of the Convention at national level, there has been a sharp and welcome decline in the number of cases in which individuals have had to take the long and arduous road to Strasbourg. There has been an even more welcome reduction in the number of cases reaching Strasbourg in which a violation of the Convention has been found against the United Kingdom. Judgments against the UK have become increasingly rare, less than 2% of the cases brought resulting in the finding of a breach of any kind.

But statistics and the results of litigation under the Act are not the only, and certainly not the best, measure of the success of the Act. Through my work as Chair of BIHR, since returning from Strasbourg some ten years ago, I have been able to witness at first hand the extraordinary impact of the Act, outside the confines of any courtroom, whether national or international, in creating a genuine culture of respect for human rights in all parts of the United Kingdom. This has not been achieved through cases that have hit the headlines or that have involved any recourse to litigation. It has been through cases where, as a result of information and support provided by BIHR, individuals and community groups have been empowered to assert directly their own rights, or those of their members, under the Act. As Trustees of the Institute, we have heard numerous personal accounts of changes that have been brought about in practices, decisions, actions or lack of action on the part of public authorities that infringe the Act - changes that have profoundly affected individual lives and that would not have been possible without the Act.

Of equal importance have been cases where, as a direct result of training provided by BIHR on the application of the Act, the police, social services, health authorities and other public bodies have themselves been led and encouraged to respect and uphold the rights guaranteed by the Convention, by making changes in policies and practices inconsistent with its provisions.

This vital role played by the Act in developing a human rights culture in the United Kingdom was expressly recognised by the independent panel established to review the operation of the Human Rights Act. In its Report of December 2021, the panel noted that the vast majority of submissions in response to the call for evidence “spoke strongly in support of the HRA, emphasising that it was not to be viewed through the prism of a few high-profile cases; what happened outside the courtroom was every bit as important.”

In the 25 years of its history, the Human Rights Act has brought about immeasurable improvements in human rights protection in the United Kingdom. The clouds that for long overshadowed the future of the Act, with the proposal to replace it with legislation which diminished or curtailed the rights guaranteed, despite the strong public support for the Act itself, have dissipated in recent months. As I leave the organisation that I have been immensely proud to chair, I express the hope not only that that the Act will survive but that it will continue to serve as a beacon for the protection of human rights in our community for the next 25 years and far beyond.

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