Complaining about “rights inflation” is not new and has been taking place since the United Nations (UN) came into being, since the European Court of Human Rights (ECtHR) started its work in 1959 and well before these two events at the national level in various countries around the world. In 1984 Professor Philip Alston wrote that the ease with which the UN proclaimed new rights threatened the integrity of the “entire process of recognising human rights”. However, the debate has now moved beyond the scholarly journals into the mainstream. Furthermore, it is now a complaint made by government ministers not about NGOs, human rights activists and campaigners, but about claimants and courts, both UK courts and the European Court of Human Rights. Is there cause to be concerned about rights inflation? What is really behind current talk of abuse, distortion and the struggle for common sense?
Now in government, Conservative ministers have not actually utilised these judgments again as examples of rights inflation, and have not managed to come up with anything else concrete to illustrate their case. In the House of Commons on 30 June 2015, Raab, taking a broad brush approach, stated that he was concerned that rights inflation had “tended to undermine the so-called liberal model of human rights, shifting away from . . . negative liberty . . . towards imposing obligations on the state rather than constraining it.” He said that the textbooks (with which he assumed MPs would be familiar) were “littered” with examples. However, in the only example he was able to cite, his accusation of rights inflation was in reality levelled at the claimant, and her lawyers, not the courts, given that the claim had actually failed.
The case referred to was Reilly  UKSC 68 where a small part of the claim was that regulations requiring benefit recipients to participate, in prescribed circumstances, in unpaid work schemes on pain of losing their benefit were incompatible with Article 4 of the European Convention on Human Rights (ECHR). This was rejected, unreservedly, by the Court of Appeal and the Supreme Court, relying on the jurisprudence of the ECtHR. Nevertheless, in the House of Commons, Raab described the litigation as “just one illustration of how the HRA has proved rather malleable material for the ingenious twisting of the basic conception of human rights”. He did not appreciate that should they actually have the funds to access the courts, claimants, and their lawyers, can make all types of claims – that is the nature of our legal system. This is entirely different from a court accepting such claims and finding in favour of the claimant.
There are of course no easy answers to determine which interests should come within the purview of human rights law and which should not. But this is a job which has been delegated to the courts, both national and supranational. Government already has the opportunity to feed into this process both before UK courts in HRA claims and before the ECtHR when applications are made under the ECHR. To disagree with particular outcomes is to be expected, but to engage in a wholesale revision of national human rights protection based upon spurious allegations of rights inflation is an attack on judicial independence and the rule of law. Given that a large part of his 2009 book The Assault on Liberty is devoted to detailing the destruction of human rights by government and Parliament, it is particularly surprising for Raab to suggest that they should also get to define the human rights that he has accused both of violating.
• 1 July 2015 – the Supreme Court held by majority that the right to respect for private life (Article 8) was not engaged when police released to local newspapers images captured by CCTV of a 14 year old boy apparently committing public order offences.
• 8 July 2015 – the Supreme Court held unanimously that it was unlawful discrimination to withdraw disability living allowance from a child who was severely disabled and who was in need of lengthy in-patient hospital treatment, because he had been hospitalised for more than 84 days.
• 22 July 2015 – the Supreme Court held by majority that the power at ports and borders to stop question and detain persons for the purpose of determining whether they might be concerned in the commission, preparation or instigation of acts of terrorism was not in breach of the right to respect for private life (Article 8). The claimant had been searched and questioned but refused to answer and was subsequently convicted of an offence.
• 22 July 2015 – the Supreme Court held by majority that imposing the costs of conditional fee agreement litigation on unsuccessful respondents was not in breach of their Article 6 fair trial rights and their right to property protected by Article 1 Protocol 1 even though they thought they were required to pay far too much.
• 29 July 2015 – the Supreme Court held by majority that a student was unlawfully discriminated against by a law preventing her from qualifying for a student loan to attend university even though she had lived in the UK since 2001, was educated here and had been granted discretionary leave to remain.
• 14 October 2015 – the Supreme Court decided unanimously that a prisoner’s solitary confinement in a Scottish prison for 56 months, almost five years, was in breach of his right to respect for private life (Article 8) but not inhuman or degrading treatment contrary to Article 3.
Keeping prisoners in solitary confinement for almost five years, discrimination against students educated and living in the UK and severely sick and disabled children, criminal penalties for not answering the questions of border officials, the alleged imposition of a disproportionate costs order and images of an alleged child offender being released to newspapers - this seems to be the bedrock of what most people would expect human rights law in the modern world to be about. However, given the subjective nature of the exercise, it is likely that some would find the claims inflated, and the judgments over the top, just as some would find the claims insufficiently bold and the judgments pathetically weak. The most important thing is that a court, not the government or Parliament, has decided where human rights law begins and where it ends and has applied it equally to all of the claimants before it, regardless of who they might vote for, or whether or not they can vote at all.