Memorandum from Liberty
"EXPLORING WHAT THE HUMAN RIGHTS ACT
HAS MEANT SO FAR FOR THE GOVERNMENT, THE COURTS AND WIDER SOCIETY"
Liberty lobbied for the incorporation of the
European Convention on Human Rights for many years and we were
very pleased when the Government decided to demonstrate its commitment
by including the measure within its first Queen's Speech in 1997.
We were also pleased that the Government, particularly the Home
Secretary, consulted with us and other human rights organisations
regularly during the drafting of the Bill and during its passage
through Parliament. The Government did listen to some of our concerns
and the Bill was improved as a result. We did not persuade the
Government to adopt all of our proposals and their stubborness
on some issues such as excluding organisations from taking cases
in their own name under the Act was unfortunate.
We were also disappointed by the Government's
peculiar opposition to setting up a Human Rights Commission (which
we are glad to see is a separate topic for consideration by the
Committee). Nevertheless the Government did instead set up a Human
Rights Act Task Force and ensure that we and other interested
parties were members. This Task Force has, within limits, worked
well and with the help of the Home Office's Human Rights Unit
has been able to act as a catalyst to ensure government departments
and others implemented proper training regimes and reviews of
policy and procedures.
The Task Force has not been able to persuade
the Government to change its mind on the creation of a Human Rights
Commission and used the excuse of this issue being on the Committee's
agenda as a way of putting off re-considering this issue.
In the time available Liberty has only been
able to produce a short note of some issues which might assist
the Committee in framing some of the questions it may wish to
put to the Government. We would be happy to provide further details
of our concerns should this be helpful.
We have also been disappointed by the Government's
attitude to other international human rights treaties. The Government
said in the White Paper that was published with the Human Rights
Bill that it intended to ratify protocol 7 to the Convention as
soon as legislative time became available to change some relatively
esoteric provisions relating to equality between spouses (Article
5). This was three and a half years ago and there is still no
progress. Protocol 4 to the Convention creates more difficulties
for the Government because it contains a right of free movement
for British Citizens. However, we have tried to assist the Government
to partially overcome some of the issues involved by assisting
with the drafting of reservations to the particular article but
our offer of assistance has been ignored. Perhaps most disappointing
has been the Government's refusal to ratify the anti-discrimination
provision, protocol 12 to the Convention. The failure also to
ratify other measures, particularly the optional protocol to the
International Covenant on Civil and Policitcal Rights, which allows
individuals a right to petition the United Nations Human Rights
Committee, confirms our view that their commitment to human rights
The major stumbling block to the implementation
of the Act has been the ambivalence of the Government at the highest
levels towards the Act. It would seem that although some individual
ministers were supporters of the Act that support did not reach
higher levels. This meant that the Government did little to go
out and sell the virtues of the Act even though they had from
October 1997 to October 2000 to do so. We know, for instance,
that although the Prime Minister was available initially to speak
at the launch event on 2 October he chose not to make this a priority.
It is not surprising that the Act has not created
the beginnings of a culture of rights when there is ambivalence
to its principles within Government. This problem is illustrated
by the fact that the approach to the Act by the Government has
all too often been a defensive one and, not surprisingly and partly
as a result, the Act has been attacked in the press. In addition
and as a consequence therefore the approach of some civil servants
has been a grudging commitment to follow the law but to go little
further. We hoped the Act would be used as a vehicle to promote
human rights and the Convention would be used as a floor to protect
rights rather than as a ceiling to our aspirations.
Too many civil servants have taken the view
that where policies may clash with the Convention they can sit
back and wait until the courts decide whether or not their policy
complies. This minimalist approach seems to be taking a greater
and greater hold in the months since October 2000 (or perhaps
more people have been willing to admit it).
This is a shame because in many cases, at least
at the early stages, there was a willingness amongst civil servants
to embrace the principles and use the Act to improve services.
This has resulted in a considerable change in some areas of Government.
This enthusiasm could have been used to better affect if the politicians
themselves had been more committed.
It may be that it was a mistake for the Act's
promoters to be based in the Home Office. This is not a criticism
of the staff of the Human Rights Unit but more the recognition
of a structural problem. The implementation of the Act creates
probably more restrictions on Home Office policy than any other
department. We are aware that ministers in that department have
expressed frustration that their policies had to be altered or
dropped in order to comply with the Act. It is difficult to believe
that this frustration did not tarnish their commitment to some
of the principles contained in the Convention and the Act.
It was clear from the speeches of the senior
judiciary before the Act came into force that the Act was not
likely to be interpreted in the courts as positively as Liberty
would have liked. Nevertheless, we were still disappointed by
the very critical approach that many judges took to those lawyers
who raised human rights points. We accept that lawyers have duty
to be careful to take only properly arguable points. Some judges
seemed to suggest that lawyers should be more cautious in human
rights law than in others.
We have been particularly disappointed by the
manner in which the courts have dismissed human rights arguments.
Reading the judgments in criminal cases from the appeal courts
has been particularly depressing. The implication from some judgments
has been that jurisprudence from the Court in Strasbourg (and
even the Scottish Appeal Courts) is less worthy of consideration
than the common law. Furthermore, despite the Acts careful (we
would say over careful) preservation of the supremacy of primary
legislation judges have gone further than necessary in dismissing
human rights claims by asserting the importance of the intentions
We do not think that overall the courts have
followed the principles in the Convention properly, we think the
European Court of Human Rights may take a different view and we
intend to encourage applicants to take their cases on to the Strasbourg
The resources allocated by the Government for
advertising and promoting the Human Rights Act were insufficient.
The absence of a Commission to promote the Act combined with the
Government's defensive and ambivalent attitude has meant that
the principles of human rights have not been communicated successfully
to the public at large. Our belief is that many people still either
see the Act as a "villains' charter" or have unrealistic
expectations of what affect it will have on their lives.
We realise that Parliament's role is not a category
that the Committee has asked for comments on but we believe that
it should not be left out. The Act has been criticised for encouraging
a litigation culture and lawyers have been taken to task for dominating
the debate on the Act (and of course for also having a pecuniary
interest). However the absence of any significant interest in
the Act from all but a few Parliamentarians has been most noticeable.
The special balance in the Act designed to protect
Parliamentary sovereignty is only justified in our view if Parliament
is prepared to make its contribution to protecting and promoting
human rights. If those Parliamentarians who are not lawyers (and
even some of those that are) are not willing to put in the effort
to understand the principles and even some of the jurisprudence
that the Act is based on then it is not surprising that the debate
is being dominated by a few lawyers. Whilst we understand the
specific reasons for the delay in setting up your Committee that
delay does nothing to promote the view that Parliament has a key
role to play in the protection of human rights.
Our view of the failure of Parliament to properly
assert its role in this is confirmed by the way Parliament has
allowed the Government to use Human Rights Act section 19 statements.
As you will know, the Government's approach to section 19 statements
has significantly reduced their usefulness. In assessing whether
a particular provision complies with the Act and the Convention
those advising the Government assume that all those public authorities
that have to implement the provision will act in compliance with
the Convention if they have the power to do so. So for instance
a Bill which gave wide discretion to the police to act in ways
which would clearly violate the Convention would still be assessed
as complying with the Convention because discretion would be constrained
by the Human Rights Act. So far as we are aware only one Bill
was assessed as having provisions which did not comply with the
Convention. This was because the Government had lost a vote in
the House of Lords on "section 28" the provision which
forces local authorities to discriminate against lesbians and
gay men and was forced to retain a discriminatory measure in the
This approach to section 19 ousts Parliaments'
role in ensuring that legislation complies with the Act. Instead
of Parliament having duty to ensure that legislation complies
the duty is left with those who have to implement the legislation
and to the courts if they get it wrong.
This leads to absurd results. To give an example
from the proscription provisions of the Terrorism Act which have
just been used by the Home Secretary. It is now a criminal offence
to help organise a meeting which will be addressed by someone
who professes to belong to a prescribed organisation. The
person does not have to be an actual member of the organisation;
at the meeting, he or she need not talk about the organisation
at all, could oppose the activities of the organisation, could
advocate non-violence or, indeed could talk instead about his
or her favourite recipes. The maximum penalty for all those "offences"
is ten years in prison.
Amendments to these provisions to ensure that
the legislation complied with the Convention more closely could
have been made. Examples like this damage the perception of Parliament
as a guardian of our rights. Section 19 statements are virtually
meaningless and say little more than that the Government expects
those that implement the measures to obey the law. The acceptance
of such bland uninformative section statements by Parliament diminishes