The mundane everyday usefulness of human rights laws

It took five years for John Walker to secure equal pension rights for his husband but finally, this summer, the Supreme Court ruled in his favour, paving the way for thousands of same-sex couples in the same situation.

Walker’s former employer, chemicals group Innospec, had relied on a little-known exemption in the Equality Act that allowed employers to discriminate on grounds of sexual orientation. The former senior executive started court proceedings on his own until the Department for Work and Pensions intervened in the case in support of the company, prompting Liberty to get involved.

“Suddenly the state was nailing its colours to the mast, joining up with the corporation and saying ‘we believe this discriminatory provision should be allowed to continue’,” says Liberty director Martha Spurrier. “At that point it became a public interest case because every married or civil partnered gay couple was facing that discrimination. It was no longer just about John Walker and his husband, it was about every same-sex couple in the country, and thousands of people will be affected by that case.”

Liberty takes on a small number of cases every year, all different, but all with one thing in common: that human rights should never be taken for granted. The Walker case is a good illustration, Spurrier says. “It’s a reminder that you need constant vigilance. Not many people knew about that loophole in the Equality Act and many wondered why the DWP fought it all the way to the Supreme Court when the Conservative party were, at the same time, pushing in parliament for equal marriage. It didn’t make any sense. That’s why lawyers are so important because they expose these loopholes and they expose the political agenda that lies behind it.”

Worse still, there is no sign that the government has taken any steps to comply with the Walker ruling, Spurrier continues. “Since then, we’ve been consistently lobbying government to confirm that the judgment will still stand post-Brexit and they have not confirmed that.” Because the case relied on principles of EU law, which won’t be ‘repatriated’ under the EU (Withdrawal) Bill, there are no formal guarantees that the ruling will stand. “Suddenly it gives you a different take on politics.”

No truer is this than when it comes to the Human Rights Act, a major area of work for Liberty, which has been running a campaign to stop attempts at its repeal. The Act has emerged as an unexpected survivor in the wake of the Brexit maelstrom that has swept into every corner of the government. After years of attacks from the more nationalistic end of the political spectrum and repeated threats to replace it with a British Bill of Rights, the Act has won an apparent reprieve: for the first time, the Conservative party manifesto did not include a pledge to scrap it.

But Spurrier, like most other supporters of the Act, fears this is just a temporary respite, with the government committed to reviewing the HRA framework once Brexit is out of the way. While many in the Conservative party support the HRA, others are also vehemently against it, and the anti-European tide is swelling ominously. David Cameron was sceptical of the Act but he never suggested pulling out of the European Convention on Human Rights, Spurrier remarks, unlike Theresa May, whose dislike of the convention is well known. “It’s all well and good that the memory of the Second World War becomes more distant, but it’s astonishing that we should have a leader saying we might not be part of that super-national system,” she says, warning that replacing the Act with a home-grown bill would remove this critical international dimension.“

The Act brings into law the rights set out in the European convention which unifies across Europe a set of basic standards. When you sit down with even the most sceptical politician and you explain about the right not to be tortured, and the right to marry, and the right to non-discrimination, they find it pretty difficult to find the one right they wholesale disagree with. There might be the odd case where they disagree with the way it was dealt with, but that’s about the separation of powers. The agenda to replace the HRA with a British Bill of Rights has always been about erosion of rights for some groups of people. There is no Conservative party politician on record suggesting there would be any extra rights, except perhaps the right to jury trial – that’s the only thing that’s ever mentioned.”

In fact, Spurrier continues, all the proposals that have been put forward would positively water down some of the existing rights. It would prevent people from, for instance, relying on the right to family life in article 8 to stay in the country, or would allow for them to be deported to countries where they would face breaches of articles 5 or 6. “That’s not an offer of an enriched human rights framework; that’s an offer of an emaciated human rights framework, and one that would only apply to people who behave well or hold so-called ‘British values’ – for which there is no objective definition.”

Quality judgments

What about the criticism that judgments from the Strasbourg court are not of the same quality as British rulings? “Of course you always have to keep an eye on judicial standards and ensure judges are properly trained,” Spurrier replies. “The reality is that there’s something uncomfortable about the UK saying ‘our qualifications are better than yours’. Cases in Strasbourg are not decided by one judge but by a panel, just as in the Supreme Court; you would hope that any discrepancies or misunderstandings get ironed out, and that standards get raised. And let’s be clear, not every single judge in the UK is a fantastic mind.” In fact, Spurrier adds, while the issue of prisoners’ voting rights gets talked about a lot, “people are hard pushed to name other cases they really disagree with”.

For campaigners, attacks on Strasbourg judges are symptomatic of a deeper concern that human rights themselves could be under threat. Although the UK wins about 95 per cent of the cases in which it is involved, the HRA has become a convenient punch bag for politicians with no other answers to the ills of society.

“It’s easy, when a politician is presented with issues such as terrorism and how to deal with it, to say there’s a simple solution and take aim at the HRA. In a world of short-attention spans and clickbaits, those quick, knee-jerk solutions are really attractive,” says Spurrier.

“People who apply intellectual rigour to the issue don’t believe scrapping the HRA would bring an end to terrorism or paedophilia. It comes back to the fact there is a toxic attitude towards people who are deemed to be undeserving – and that’s troubling.”

Funding was made available when the HRA came about for projects to ensure the new rules would be embedded in public life and everyday practice. That money was never spent, says Spurrier, and the growing threat of terrorism in the aftermath of 9/11 made politicians nervous about endorsing human rights.

“The great sadness is that the HRA became negatively politicised. That meant it didn’t get the endorsement and support at the top that would have allowed it to bed in properly in places where it matters. The challenge now is: how do you make it a political impossibility for anyone ever to suggest repealing the HRA in the same way that it is probably a political impossibility to repeal health and safety legislation?”

For while most of the public usually becomes aware of human rights via negative headlines, the HRA has been used in practice as an effective decision-making tool by public bodies ranging from local authorities to social workers and the police. Community care cases are another example of how human rights deliver positive results for ordinary people, Spurrier says – the former Doughty Street tenant developed a specialism in the area when she was at the Bar. “A lot of these cases don’t go to court or come to barristers, they get settled after letters before claim. Cases about disabled kids, or respite care, or access to hospital treatment – these are everyday article 8 cases.

“There’s something mundane about human rights – it’s like health and safety legislation, it’s about rebalancing. People who’ve never worked on a construction site don’t understand why health and safety legislation is needed. Then you have a disaster like Grenfell, and I suspect people who’ve been critical about health and safety legislation may think twice before being critical again.”

Likewise, civil liberties lawyers have come under attack and been blamed for abusing human rights legislation. Spurrier dismisses the accusation outright. “My experience of lawyers is that they act in the best interests of their clients, which means using whatever argument is most likely to win your case. You ultimately have a duty to the court so you’re not going to be misleading. So if you’ve got a prisoner who’s been denied visits from his family, you’re not going to say you don’t want to run an article 8 argument because you don’t want to be excessive in your use of the HRA. If you know their family life rights have been breached, the HRA is the only way to show that.”

In fact, Spurrier continues, there should be little human rights litigation in a human rights-healthy country, because human rights aren’t about lawyers – let alone ‘creative’ lawyers – but about values in public life. “If it’s working, it shouldn’t need to come to court.”

But the other issue, she says, is that the hardest people to reach are those who need human rights the most, such as individuals held in immigration detention centres. The UK detains 30,000 people a year in immigration centres, and on this basis alone Spurrier reckons more human rights cases could be brought. “But it’s an area where it’s difficult for these detainees to access legal advice and to take their case further, either because they can’t access advice from the centre they’re in, or because they’re too mentally ill or too scared because their immigration status remains uncertain. So there are groups of people for whom access to justice remains an illusion.”

Common law rights

Access to justice is at the heart of another debate about human rights. Earlier this year, trade union Unison won a landmark victory after the Supreme Court found that employment tribunal fees were contrary to the common law. While Spurrier unreservedly welcomed the judgment, she is cautious about a revival of the common law as an alternative to human rights. The rights to privacy, to free speech, to protest, and to freedom from torture just do not exist in the common law.

Inquests have also been completely transformed by human rights law, as illustrated most vividly by the Hillsborough inquest. “The submissions of the Hillsborough families to the attorney general for a fresh inquest were entirely based on article 2. That wasn’t because the lawyers at the time thought they wouldn’t bother relying on the common law; there’s nothing you could have relied on in the common law,” Spurrier comments.

What has perhaps happened, she suggests, is that some senior judges, fearful of the attacks on the HRA, have sought to future-proof it by digging into the common law for principles that would achieve similar outcomes. The trouble with this approach is that while Supreme Court justices are in a position to choose this route, she says, judges in other courts are unlikely to do so for fear it would make their decisions vulnerable to challenge.

The other problem with this approach is that the common law doesn’t allow for a declaration of incompatibility, a remedy that is readily available under the HRA. “That’s a hugely powerful tool,” Spurrier remarks, “because – while parliament remains sovereign – it’s the only way judges can say ‘this state of affairs cannot continue’. That’s really meaningful.”

Further, the rights enshrined in the HRA are more visible than common law rights, most of which tend to lie dormant until uncovered in the course of litigation. Given a copy of the articles in the HRA, most people on the street would be able to understand what they meant, Spurrier says. Not so with the common law, where the identification of a right is often uncertain and unpredictable.

“If you say to an ordinary claimant that there may be something in the common law that they could rely on to challenge a decision, but that you cannot be sure and you cannot predict how the judge will interpret the law, which is based on 20 years of precedents, there’s a real access to justice point,” she says. “It makes these rights illusory for people who might seek to rely on them without the help of lawyers. It’s welcome that judges have been active in finding creative ways to bring the common law up to scratch, but there are areas where the common law has nothing to offer.”

New battlegrounds

Already, the fight for human rights is moving to a new battleground. Technology is bringing unprecedented challenges, cutting across all areas of human rights. One area of concern has been the development of decision-making algorithms, which several police forces have been trialling. While this could lead to better decisions, there are also serious concerns over racial bias. At this stage, Liberty has only just started engaging with the police forces involved. There are questions about how the technology will be used, the software, and what data is being fed into the system.

“You often have racial bias in algorithmic decision making, so this could perpetuate existing bias,” Spurrier says. “But in everything we do we try to provide solutions as well as challenge, so it’s more being a critical friend, telling the police about the problems we can foresee with their approach and being careful about rolling it out.”

Earlier this month, Liberty also wrote to the Met commissioner about the planned use of facial recognition technology. “There’s no legal framework for it at the moment and we think it could be very invasive and probably contrary to the HRA,” Spurrier explains.

“The plan was to use it at Notting Hill carnival, and it’s particularly risky to use it at an event celebrating diversity when we know there’s likely a racial bias to it. We’ve asked to sit down and talk about it. That’s always the first port of call.”

The civil liberties organisation should next be in court this autumn for the first hearing in its case against the Investigatory Powers Act 2016 – the so-called ‘Snoopers’ Charter’. Its challenge against part 4 of the legislation has been allowed to proceed while applications against other parts have been stayed pending the publication of the government’s code of practice under the Act.

Liberty campaigned against the bill, warning that millions of people could be put under invasive surveillance even where there is no suspicion of wrongdoing. The case is an apt illustration of the challenges the organisation itself is facing in its fight to save the HRA: at this stage, nobody has been directly affected by the Act, and, as in the Walker case, it may take a while for real issues to surface in individual cases.

Telling the stories of those who’ve benefited from the HRA is a powerful tool. The Hillsborough inquest and the decision to hold inquests into the deaths at Deepcut Barracks may resonate with the wider public, but without greater support and commitment from politicians, the mission to retain human rights for future generations is far from over.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

@jeanyvesgilg

jean-yves.gilg@solicitorsjournal.co.uk