Merris Amos

27 October 2015

Political campaign strategist Lynton Crosby, current adviser to the Government and former adviser to the Conservative Party in the last general election, is the master of the short, sharp message. In relation to human rights law reform, there are a few current messages which bear his imprint. Dominic Raab, Minister for Human rights, does not want to see human rights become “dirty words in the minds of the public”. Lord Faulks, Minister for Civil Justice, and Michael Gove, Minister for Justice, have spoken of the need to prevent the “abuse of human rights” and to restore some “common sense”. The Prime Minister thinks that the good name of human rights has sometimes “become distorted and devalued”. And the key message, from which these all flow, is that we are experiencing in the United Kingdom a period of “rights inflation”, which is, according to Raab, “the exponential expansion of rights that the design of the Human Rights Act . . . has promoted.”

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?

Where is the evidence?
In his 1984 article, Alston provides numerous examples to illustrate his argument: “the right to co-existence with nature”; “the right to be free to experiment with alternative ways of life”; “the right to access challenging work requiring creativity”. Is our government outraged by comparable examples of human rights creativity? Unsurprisingly they are not. In the 2014 document published before the election by the Conservative Party, Protecting Human Rights in the UK, the only examples of the “mission creep” engaged in by the ECtHR given were: granting some prisoners a right to vote; allowing a few prisoners access to artificial insemination facilities; and allowing some foreign nationals to resist deportation from the UK on human rights grounds.

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 [2013] 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.

What are they really saying?
At the most basic level, to accuse someone’s human rights claim, or a judgment of a court, of being inflated is an expression of disagreement with an added element of spin – an indication to others that you think human rights law is, or has become, ridiculous. But not all human rights claims nor all human rights judgments are considered by government ministers to be “inflated” so there is a further element of discrimination and ridicule. To be held up as an example of “rights inflation” is the government’s way of saying that only some human rights and some types of human rights claimant are deserving of the protection of the law. From the 2014 proposals, it is fairly clear that prisoners and foreign nationals who have committed crimes are considered candidates for lesser human rights protection than others. From Raab’s comments about the Reilly case, it could also be concluded that he considers welfare recipients should enjoy a lesser standard of protection, something which prevents them from even bringing an “inflated” human rights claim before a court.

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.

Has the Supreme Court been engaging in "rights inflation"?
To date, the Government has not come up with any convincing examples of rights inflation but have done a fairly effective job at casting aspersions. Many believe that on a daily basis the UK Supreme Court grants prisoners the vote, facilitates their family lives and halts the deportation of sinister baddies. The truth is by no means as exciting. Given the dearth of discussion surrounding current HRA case law, a useful exercise is to take the six most recent human rights judgments of the Supreme Court, and employing your most objective assessment, ask yourself whether a completely unexpected and inflated development of human rights protection has taken place. Brief summaries of the judgments are listed below.

• 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.

To say that a right or claim is inflated is simply another way of saying that you don't agree with it without taking into account the many other different perspectives which may be based on evidence or a just a particular world view. The fact that we often can’t agree on the interpretation and application of human rights law is why in our country the task has been handed over to our independent and impartial judiciary. It was agreed long ago that these fundamental human rights are just too important for populist politics and grandstanding. Sure, disagree with what the courts might decide and argue that people are hideously selfish for trying to get the most out of human rights law. But to suggest that the players should be able to adjust the rules of the game as they go along to ensure that they always win undermines the rule of law and leaves us all vulnerable to politically motivated violations of our human rights.