By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
It is hard to disagree with the idea that we should protect human rights. However, as the Government’s consultation paper recognises, protecting human rights can also come at a cost. For every human rights claim brought – even if this is eventually unsuccessful – time and money have to be devoted to defending that claim. When it is the Government that is bearing these costs, this carries a further price. Time and money spent defending a human rights claim is time and money that could be spent on other public services – e.g., the NHS, social care, and education.
The Government’s consultation states that the application of the Human Rights Act 1998 has given rise to a ‘culture of rights decoupled from our responsibilities as citizens, and a displacement of due consideration of the wider public interest’. It seeks to redress this imbalance in two ways. First, through providing a filter to remove frivolous human rights challenges. Second, it wishes to ‘recognise the importance of responsibilities in an overarching provision in the Bill of Rights.’
The consultation paper suggests two means through which we can ensure that only genuine human rights claims come before the court. First, it suggests a permission stage for human rights claims. This would mean that, to bring a claim that their human rights had been harmed, an individual would have to show that the harm to their rights had given rise to a significant disadvantage, or that there was an overriding public interest in bringing their case. Second the consultation paper suggests that individuals should first bring other claims, before relying on human rights legislation (currently the Human Rights Act 1998) to bring an action for damages.
When considering these suggestions, we first need to ask whether the changes are needed. Individuals whose rights are harmed can bring an action for damages under the Human Rights Act 1998. They can also bring an action for judicial review, challenging the legality of a decision of the public authority. This is because section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a manner that contravenes a Convention right (that is, a right set out in the European Convention on Human Rights and given effect in UK law by the Human Rights Act).
Yet there already is a permission stage for judicial review. Any modification, therefore, needs to look carefully at the statistics for judicial review and Human Rights Act claims to work out whether there is a problem and whether a permission stage would stop vexatious litigants – those bringing human rights claims that are not genuine claims.
Second, we need to think about what adding in a permission stage would achieve. Any test will need to be interpreted. What do we mean by a ‘significant disadvantage’, for example? Sometimes a human right can be harmed in a way that is serious, but where this may not be seen as one that gives rise to a significant disadvantage or creates large costs. Is there a significant disadvantage, for example, if an individual is not able to protest peacefully in one location – e.g., outside the Houses of Parliament – but can protest peacefully elsewhere?
On the one hand, this is not a significant disadvantage as that individual can still exercise their right to freedom of expression under Article 10 ECHR (European Convention of Human Rights). But, on the other hand, that individual may argue that the exercise of their right to freedom of expression is significantly harmed given that they will not be able to directly address those whose laws they wish to protest.
What about if your right to respect for private and family life under Article 8 ECHR is harmed because your house lies under the flight path of a nearby airport and the noise makes it difficult to sleep? You might argue that this is not a significant disadvantage as it is only a small intrusion on your rights. But it may come at a large cost in another sense – devaluing your home meaning that you suffer monetary loss. The consultation paper also suggests that where ‘significant disadvantage’ cannot be shown, provision might be made for cases to be brought when there is an ‘overriding public interest’. But it may also be difficult to know what is and is not an ‘overriding public interest’.
Difficulties may also arise with requiring individuals to seek redress through means other than Convention rights. In a recent case, the European Court of Human Rights refused to deem a complaint admissible as the applicant had not exhausted their domestic rights (this is a requirement to bring a case before the Strasbourg Court). This was because the UK courts had not discussed Convention rights. What this means in practice is that, even if there is a domestic remedy, individuals will still want to ensure Convention rights are applied to make sure that they do not cut off a possible means of appeal should they believe their right is insufficiently protected.
Third, we need to think about whether, given the potentially vague nature of any test used for a permission stage, there may be a need for the possibility of an appeal. This may mean that there is still a need to face large costs in time and money to establish whether permission should be granted or not. Will this just create lots of further litigation?
Fourth, a permission stage may deter individuals with genuine human rights claims. They may not be sure that they would be given permission to bring a legal action and so may decide it is not worth bringing a claim. Should we have a test that errs on the side of caution of allowing individuals to protect rights, even if this places costs on public authorities? Or should we adopt a test that that errs of the side of caution of preventing frivolous human rights claims so that public authorities are able to continue to act for the wider public interest?
Rights come with responsibilities. To grant a right to one individual means that others may have a responsibility to protect that right. For example, because we have a protection of privacy from Article 8 ECHR, this can place responsibilities on the media to ensure that they publish stories that respect the right to privacy of others.
The consultation paper also recognises other responsibilities – for example to obey the law and to pay taxes. The question arises, should we consider the fact that an individual has not acted responsibly when they bring a case to protect their human rights? The consultation paper is not arguing that individuals who do not act responsibly should not get human rights. Rather, it asks whether this should be considered when granting remedies when human rights have been breached. This is similar to how the European Court of Human Rights has decided some cases.
This raises deeper issues. Should we regard everyone as having the same human rights that are protected in the same way with the same remedies, or is it the case that some do not deserve the same remedy because of their conduct? If we see human rights as fundamental and belonging to all due to their nature as a human being, it may seem difficult to argue for a difference in remedies. However, it may also seem unfair that all get the same remedy when one person had committed a serious criminal offence, and another had not.
To answer this question, we must dig a little deeper. Issues of equality always need a baseline. In other words, we must ask ourselves; ‘equal to what?’. Do we treat people equally by giving them all the same human rights and remedies? Or should we treat people equally by giving them the remedies they deserve, given their past conduct?
Costs, Benefits and Culture
The consultation paper raises difficult issues. To answer them we do need to think of relative costs and benefits. But we also need to think about the type of society we wish to see in the United Kingdom. Do we want to err on the side of caution to provide greater access to the courts to protect rights, or to minimise costs to public authorities and the potential harm to the public good? Do we want all to have the same rights and remedies, or recognise that some may not deserve the same remedies? Perhaps we also need to ask ourselves whether these fundamental questions should be answered by politicians, or whether there is a need for wider public engagement given that these answers help shape the UK’s values and culture.