Exploring the Constitution
Have Judges followed a human rights agenda regardless of political opinions?
Arguments in favour
The judges are now applying principles that are different to those found in British law. The ECHR applies the principle that if rights are to be taken away then Government, or any public body that does so, must provide clear justification for doing so. Previously the Wednesbury principle was used by the British courts and this meant that judges would only declare a decision illegal if there was no possible justification for it. The burden of proof now goes to the public body. The British courts had previously argued that the ban on gay people in the military was legal as this was a matter for the Government. Once ECHR principles were applied the courts ruled that the ban was illegal because the Government failed to provide evidence for their main arguments that it jeopardised morale and operational effectiveness. The ECHR principle is also one of proportionality, so that the restriction on rights has to be the minimum needed to justify the public objective and public bodies have to prove this too. It is also the case that the right to respect for privacy and family life is not one with which the British courts are familiar.
When British judges make a decision on a case, Parliament is able to look at this and can pass legislation which reverses the judgement if it does not agree with it. The European Court is not elected and there is no elected body which is able to review its decisions and reverse them. If British judges are following ECHR judgements or if the ECHR overrules British judges then Parliament can change this. The former Labour Home Secretary, Jack Straw, has made this point and said that the effects of the Human Rights Act has gone further than he expected when he introduced it. Conservative politicians, most of whom are suspicious of European influences, are now proposing that the Human Rights Act is replaced by a British bill of rights.
There have been a number of cases which have brought the judges into conflict with politicians when previously judges looked to keep away from politically controversial issues. For example, the Abu Qatada case where the courts ruled that the extremist preacher could not be extradited to stand trial in Jordan because there was no guarantee that he would not be tortured there and the attempt of Home Secretaries to impose life sentences on prisoners with no review at a later stage was illegal. The cases have been taken up by the right-wing tabloid newspapers and so a political controversy has developed around the legal system.
The Human Rights Act challenges Parliamentary Sovereignty which is one of the key principles of the British constitution. The power of the courts to declare legislation incompatible with the Human Rights Act has in practice led to other legislation being overruled. The British Courts are used to accepting the judgements of higher courts and, since the ECHR is higher than the British Supreme Court, its judgements are accepted regardless of the views of Parliament.
There is the idea that there is constant expensive litigation against what Government is trying to do. The number of cases in which human rights are cited has certainly increased.
Changes in the role of the Judiciary were happening well before the introduction of the Human Rights Act. From the late 1960s, judges increasingly began to question the decisions of Government. This reflected a change in society with people becoming less deferential and more ready to question government decisions.
The British courts have not blindly followed the decisions of the ECHR. The ECHR allowed for the principle of discretion so that national systems can be taken into account. The British courts have turned this into the principle that government has more understanding of the topic that the case refers to than the courts and so, as long as there is an explanation for a decision that is detailed enough, then that is sufficient. Judges have generally accepted national security as a valid reason why rights should be taken away.
The Human Rights Act was instituted by Parliament. Human rights are now broadly accepted and it would be difficult to imagine that a British bill of rights would look very different from the European Convention. British foreign policy is often based on opposing human rights violations in other countries and so it would be very difficult to remove human rights from the British Constitution.
Only about 4% of cases in the years after the passing of the Human Rights Act dealt with asylum and immigration cases. The majority have dealt with the rights of groups such as people with people with a disability, people with mental health problems, gay and transsexual people and children. The idea that Parliament can impose the will of a majority on minorities no longer matches the pluralism of British society and the courts are reflecting that.
The great majority of cases brought from Britain to the ECHR are dismissed without any detailed consideration by the Court. In 2012, the Court dealt with 955 applications from the UK, of which only 19 were considered admissible and eight were ruled a violation of the Convention.