Human Rights Act mythbuster
There has been very little public education about the rights and freedoms contained in our Human Rights Act, and how it works. As a result, many myths and misunderstandings have sprung up about our HRA – including who it does and doesn’t protect and what values it contains.
Exploding these myths is going to be a crucial part of our campaign to Save Our Human Rights Act.
Here are some of the most common false accusations against our HRA:
"The Human Rights Act undermines parliamentary sovereignty"
Our Human Rights Act actually increased British sovereignty. Before our HRA, cases went to the European Court of Human Rights in Strasbourg without any judgment from a British court. Today, British judges now rule on all claims arising in the United Kingdom – and help to influence Strasbourg case law. This dialogue between our courts and Strasbourg helps to protect sovereignty – and the European Court is very respectful of British decisions. The number of cases decided against the UK has therefore steadily decreased since our HRA came into force – in 2014, there were only four new judgments finding a violation against the UK. Parliament remains sovereign but is still required by international law, of course, to comply with Strasbourg judgments – in the same way that the UK is bound by thousands of other international treaty obligations.
"Under the Human Rights Act, British courts are bound by the European Court of Human Rights in Strasbourg"
On the contrary, our Human Rights Act is clear - British courts are not required to follow the judgments of the European Court of Human Rights blindly - they must only 'take account' of them. Domestic judges can - and often do - depart from Strasbourg case law, to take account of the United Kingdom's own laws and traditions. Where our Supreme Court and the European Court disagree, the latter has the opportunity to revisit its conclusions - aiding the dialogue between the UK and Strasbourg. Repealing our Human Rights Act would only make matters worse - Strasbourg judges would be denied the chance to consider a British interpretation of European Convention rights. It's worth remembering that, when our HRA was being passed, it was actually the Conservative Party who argued that British courts should be bound by Strasbourg - but their idea was rejected by Parliament.
"Interpretation of the European Convention as a 'living instrument' undermines the intentions of its postwar founders"
The European Convention on Human Rights was drafted back in 1950. At that time, across much of Europe, homosexuality was still illegal, marital rape and corporal punishment were still legal, and developments such as the Internet, DNA profiling and human trafficking could never have been imagined. If the Convention was today still applied to 1950s standards, rights protection in Europe would stagnate. Instead, interpretation of the Convention’s provisions rightly evolves as modern life and social attitudes change. In the United Kingdom, judicial interpretation is an essential part of our Common Law tradition – and no Bill of Rights around the world can exist without it.
"The Human Rights Act does nothing for ordinary people"
On the contrary, our Human Rights Act protects everyone’s human rights - young and old, rich and poor, yours and your neighbour's. Anybody’s privacy can be breached by the prying eyes of the State - just ask our client, mother-of-three Jenny Paton - and anybody can be badly let down by the authorities, or wrongly accused of a crime. Hopefully it won't ever happen to you. But, if it does, you'll be glad to have our Human Rights Act to rely upon.
"People now have a ‘human right’ to anything"
No, they don't - our Human Rights Act doesn’t protect an endless catalogue of rights. In fact, it only protects only 15 well-established fundamental freedoms, like the right to life and the right to a fair trial. Many other democracies protect a far broader range of rights, but no other modern democracy has repealed their equivalent legislation. Just as the US would not scrap its Bill of Rights, we should not scrap ours.
"The Human Rights Act protects only criminals and terrorists – it does nothing for victims"
That's simply not true - our Human Rights Act protects the rights of everyone. It actually requires the State to take practical steps to protect people whose rights are threatened by others. And most freedoms can be limited in the interest of public safety; to protect national security; or to prevent an offence being committed. Indeed, our Human Rights Act specifically states that those suspected of or convicted of crimes can be deprived of their liberty. The protection of victims lies at the very heart of human rights law, and our Human Rights Act has given many grieving relatives - including our clients, Sharon Hardy and Khristina Swain - the right to an independent public investigation into the death of their loved ones.
"Human rights have been imposed on us by Europe"
No, they haven't - our Human Rights Act was independently passed by our own Parliament back in 1998, with cross-party support. The Act simply incorporates the Convention on Human Rights - itself largely drafted by British lawyers, in the aftermath of the Second World War - into our own law. The Convention was adopted by the Council of Europe in 1950 – a body set up after the Second World War to promote democracy, human rights and the rule of law in Europe - it has nothing to do with the European Union.
More about international human rights.
"The Human Rights Act has made us all less safe. It needs amending so that the courts are required to balance our rights to safety and security"
Our Human Rights Act already requires the courts to balance human rights against the interests of public safety. There are some rights that are absolute, such as the right not to be tortured, but most of our freedoms - free speech, peaceful protest, and personal privacy, for example - can be limited where necessary and proportionate. Human rights legislation was drafted after the horrors of the Second World War and the Holocaust. Thankfully, countries like the UK, who have remained committed to protecting human rights, have not seen a repeat of such atrocities. But sadly human rights violations remain a tragic reality in many countries across the globe. How can we call for an end to rights abuses elsewhere unless we show a commitment to protecting rights at home?
"The Human Rights Act has cost the British taxpayer millions - and been a goldmine for lawyers"
Actually, one of the main reasons for our Human Rights Act was the cost and delay caused by the fact people previously had to go to the Court of Human Rights in Strasbourg to enforce their rights. Now people’s rights can be protected by British courts, which is far more efficient and cost-effective. But our Human Rights Act isn't just about lawyers and courts. It's helped thousands of people protect their human rights without the need for costly legal cases. Local authorities have reviewed their policies to make sure they treat the vulnerable with dignity and respect and users of a wide range of public services have used the Act as a tool to argue for better and fairer services.
"British Common Law and Magna Carta protected our rights long before the Human Rights Act"
Yes - the UK has a long and proud history in leading the development and recognition of fundamental rights and freedoms. In fact, many of the rights in our Human Rights Act originated in principles emerging from Magna Carta, the 1689 Bill of Rights, and the Common Law. However, the Common Law is liable to be overridden at any time by statute. It offers no possible recourse when rights are undermined. There's also nothing in Magna Carta or other historic legislation to protect free speech, personal privacy, the right to protest, and so on. Many of the rights we have long taken for granted found no protection in domestic law until our Human Rights Act came along. As a result, before our HRA, instances of British law failing to provide sufficient protection for people in this country were not uncommon - and this country's record before the Court of Human Rights in Strasbourg was not overly favourable.
More about the history of human rights.
"The Human Rights Act gives too much power to unelected judges"
Actually, unlike most Bills of Rights around the world, our Human Rights Act doesn't give the courts any power to strike down laws. It adopts a compromise instead - maintaining parliamentary sovereignty and setting up a dialogue between the courts and Parliament. Under our HRA, if one of the higher courts finds legislation to be incompatible with human rights it can only issue a declaration of incompatibility - leaving it up to Parliament to decide how best to respond. One of the cornerstones of our democracy is our independent judiciary, interpreting and applying the law. Judicial decision-making is fundamental to the rule of law, and the powers given by our Human Rights Act to the courts fall squarely within this historic function.
"The Human Rights Act is all about rights and not about responsibilities"
Wrong - human rights and responsibilities are inextricably bound together. Rights mean little if others don't take responsibility to protect them. And most rights are not absolute – they can be limited, if necessary, to protect the rights of others. For example, free speech explicitly carries with it responsibilities, such as not to incite violence. Our Human Rights Act also states that none of its rights can be interpreted as implying that anyone has the right intentionally to destroy others' rights. But, while many freedoms come with responsibilities, they are also universal and inalienable. So a person can't, for example, be denied a right to a fair trial because they're suspected of having committed a crime.
"The HRA prevents us from deporting dangerous foreign criminals"
There's no general prohibition in our Human Rights Act on the deportation of foreign nationals. If the Government decides that a citizen from another country, with limited ties to the UK, should no longer be allowed to stay and can safely be sent back, nothing in our HRA prevents this. However, under international human rights law, the absolute prohibition on torture does prevent countries from sending people anywhere where they will be tortured. But this is entirely logical. If we abhor torture, we must also abhor its outsourcing. If governments were only prohibited from torturing their own citizens, but permitted to send people to places of torture, there'd be little distinction between deportation and extraordinary rendition. Even before the introduction of our HRA, the European Convention on Human Rights and the International Convention on Civil and Political Rights prevented the UK from deporting people to places of torture.
Depending on the facts, a person’s right to a family life, as protected by Article 8, may also be interfered with in some cases if deported. But Article 8 is a qualified right, and can be overruled. As such, Home Office policy considers all the facts, including the reason for the deportation (i.e. whether a serious offence has been committed); the length of time the person has been in the UK; and whether the person has, for example, young children born in the UK, or a British spouse. This is the type of balancing exercise the Home Office would carry out regardless of our Human Rights Act, but it has provided greater transparency, accountability and oversight of Home Office decisions.
While the Home Secretary, Theresa May, has claimed that 'thousands' of people use Article 8 to stay in Britain every year, the number of deportations prevented is actually very small. In 2011, for example, 1,888 appeals were made against such deportation - only 185 of those were allowed on Article 8 grounds (less than 10 per cent of total appeals, and less than 5 per cent of total deportations).
More on deportation to torture.
"Prisoners have the right to access hardcore pornography because of human rights"
In 2001 there were numerous media reports that the serial killer Dennis Nilsen was using human rights law to demand access to hardcore pornography in prison. Since then, it has been widely reported that human rights law does indeed give prisoners such access. However, the court actually denied him permission even to bring the claim, let alone have it heard in court, on the basis there was clearly no arguable case that his human rights had been breached.
"Police can’t put up ‘Wanted’ posters of dangerous criminals on the run because of their human rights"
Since 2007, we've seen reports that police can't release photographs of dangerous criminals because this would 'breach their human rights'. However, our Human Rights Act itself protects the right to life, and imposes an obligation on the State to protect people from serious criminal attack. In some circumstances, even, the Government may actually be under a duty under human rights law to publicise photographs of dangerous convicted criminals, if this would protect others. The right to privacy can of course be limited for the protection and detection of crime, as long as it's necessary and proportionate – seeking to locate dangerous criminals, and warn the public, is certainly not a breach of human rights law.
"Police gave fried chicken to a burglar because of his ‘human rights’"
In 2006, a suspected car thief fleeing police was besieged on a roof for 20 hours. During the course of the stand-off, the police negotiating team gave the man Kentucky Fried Chicken and cigarettes. It was widely reported that this was to protect his ‘well-being and human rights’ - which was clearly false. There is no human right to KFC, or indeed to be provided with any food in such a scenario. Rather, the police were using general negotiating tactics to encourage him to come down from the roof.
"The Human Rights Act's right to privacy prevents free media reporting"
Our Human Rights Act protects both the right to privacy and the right to free expression. At times, these rights can conflict with each other and, when they do, a balancing exercise is required. Our HRA has on many occasions strengthened press freedom. In particular, free speech (as enshrined in Article 10) will protect media reports that are of public concern and in the public interest. Indeed, the right to free speech finds its only protection in UK law under our Human Rights Act. Article 10 has both protected journalists from being required to disclose their sources and provided protection for investigative reporting. However, it will not shield reports which are obviously false; and it may not protect intrusive reports relating to individuals' private lives. In some cases the right to privacy, in conjunction with the Common Law, will prevent media reports into the private lives of celebrities when such details are not in the public interest.
"The Human Rights Act hasn’t prevented the introduction of new laws that breach human rights"
As our Human Rights Act doesn't affect parliamentary sovereignty, it cannot prevent the Government from bringing forward new legislation or policies - including those that infringe human rights. And yes, our HRA hasn’t prevented numerous authoritarian laws being passed - just as, for example, the US Bill of Rights didn’t prevent the passing of the USA PATRIOT Act, or the establishment of internment at Guantanamo Bay. As with all Acts of Parliament, it's only after laws have been enacted that the courts can turn to interpret them and, if they do find legislation to be incompatible with human rights, they can make a declaration of incompatibility. It's up to Parliament to ensure that all new laws respect fundamental rights and freedoms, with our HRA providing a check on executive and legislative power after its exercise.
"The Human Rights Act has created a compensation culture"
The remedies available under our Human Rights Act are focused on bringing any infringement of human rights to an end. A claim based on breach of human rights isn't the same as a case brought under the law of negligence, where the purpose of the claim is to obtain damages. In human rights claims, compensation is a secondary consideration and often not awarded at all. Our HRA provides that compensation can only be awarded once all the circumstances of the case are taken into account, including what other relief is available. There's no right to compensation – it's only awarded when it is necessary to ensure ‘just satisfaction’. The courts will also consider an applicant's behaviour before awarding damages. As a result, very few human rights cases involve awards of damages.
"Because of the Human Rights Act, public bodies are frightened of making the wrong decision and criminals end up being released early"
In 2004, sex offender Anthony Rice was released from prison on parole after serving 16 years of a life sentence for violent attempted rape. He had previous convictions for rape and indecent assault. In 2005, he raped and murdered Naomi Bryant while on licence. The following year, a review into the decision to release him concluded that part of the reasoning was based on human rights considerations - prompting widespread media reports that Rice was freed ‘because of his human rights’. In reality, there was no evidence the Parole Board even considered human rights. Rice was freed because of a series of mistakes, including relevant information about his past crimes – including a serious assault on a five-year-old – not being made available to the Parole Board. The Joint Committee on Human Rights concluded that Rice wasn't released because of human rights considerations – a finding the author of the 2006 review himself endorsed. There's no human rights objection to continued incarceration of a convicted dangerous offender who hasn't yet served his full sentence. In fact, the right to life under Article 2 of our Human Rights Act requires the State to take steps to protect life. It's only the right to life that enabled Naomi Bryant’s mother, our client, Verna, to secure an inquest into the circumstances leading to her daughter's death. And there's no evidence that any criminal has been released from prison early on the mistaken belief that this was required by our HRA.
More on victims' rights.
"The Human Rights Act prevents rapists and paedophiles from registering their details (including their online identities) on the sex offenders' register"
Wrong – there’s nothing in our Human Rights Act that prevents convicted sex offenders from being required to register on the sex offenders register. The right to privacy under Article 8 can of course be limited if it is necessary and proportionate to protect public safety. The courts have therefore held that registration on the sex offenders register does not breach human rights law. In 2010 it was, however, wrongly reported that plans to require sex offenders to disclose email addresses and online identities (for example, on Facebook) had been shelved because it would breach offenders’ human rights. Instead the European Court of Human Rights has held that the requirement to provide information to the police for inclusion on the sex offenders register is indeed proportionate, given the gravity of the harm which may be caused to victims of sexual offences if an offender were to reoffend. Our Supreme Court has held that, while life-long registration on the register can be justified, there should be a mechanism to provide simply for a review of the requirement to remain on the register long-term. A review would consider an individual’s circumstances and may well lead to a decision to continue to require registration.
"The Human Rights Act is not sufficiently ‘British’ so the UK doesn’t benefit from the ‘margin of appreciation’ before the European Court of Human Rights"
The Court of Human Rights gives a ‘margin of appreciation’ to member states to allow for political and cultural variations between the 47 different countries that have signed up to the Convention on Human Rights. It’s also applied where the Court considers that national authorities are better placed to make assessments of proportionality about rights protection. How much emphasis is placed on the ‘margin of appreciation’ depends on the nature of the human right at issue (for example, religious freedom might attract the principle; torture will not); the reason the State has limited the right; and whether there are differing approaches to the issue across the continent or if a country is alone in limiting the right in that way. The adoption of a differently-named ‘British Bill of Rights’ – or indeed a written Constitution – would have no added effect in ensuring the Court applied a greater margin of appreciation to the UK.