Human Rights Act 1998

Baroness Whitaker Excerpts

Thursday 14th July 2022 Lords Chamber

Moved by

[Baroness Whitaker]

To move that this House takes note of the practical impact of the Human Rights Act 1998.

[Baroness Whitaker (Lab)]

My Lords, may I first acknowledge the contribution to human rights of my dear friend of many years, the noble Baroness, Lady Greengross, a founder member of our Equality and Human Rights Commission, whose work for the rights of older people, among others, was so very effective?

I am grateful for the opportunity to explore what the Human Rights Act 1998 has achieved by way of impact on ordinary people’s lives—not, I hasten to say, as a legal expert, though I should perhaps declare that I have been a magistrate and a member of employment tribunals. More to the point, I am proud to be a member of the British Institute of Human Rights advisory board, and it is there that I have learned much about the very many examples of redress for breaches of human rights. What these amount to is, essentially, disregard for the dignity of our fellow citizens and a lack of respect for them on the part of public authorities. May I invite the Minister to congratulate the British Institute of Human Rights on the work it has done over the years to train public services in the application of the Human Rights Act to their functions?

I will first give some examples of what I mean by impact on people’s lives. Secondly, I will say a few words about what the Human Rights Act has not done. I will conclude by suggesting some of the lasting principles that have informed the Human Rights Act. My remarks are premised on the assumption that, although professional lawyers and judges at every level are essential for the interpretation and implementation of law—we are lucky in this country to have such a distinguished and honourable corps of practitioners—the law is meant for people, for everyone, so that they should understand their obligations and be clear about what they are entitled to. It follows that law should be intelligible, as far as possible, and that redress should be accessible.

Some examples of what our domestic courts have achieved for people through the Human Rights Act are well known. We have heard about the elderly couple who had their wish to live in the same care home respected. People must be allowed to wear religious symbols at work. Siblings should not be arbitrarily placed in separate, distant foster homes. Do we also all know that the police now have a positive obligation to protect women from domestic violence? This has achieved a change—somewhat—in police priorities and practice. There are several cases of children with learning disabilities who were subjected to damaging isolation, harsh restraints or unexplained evidence of violence, whose parents were able to use the Human Rights Act to obtain changes in their treatment, often resulting in an improvement in a child’s behaviour. We should also remember the case of Corporal Anne-Marie Ellement, whose family were finally able to obtain a full investigation after she took her own life following rape and bullying; that of the incontinent patient forced to use a bucket to urinate in and carry it along the corridor to empty it herself; the safeguarding of trafficked children as a result of the 2013 case of L, HVN, T v R; the Northern Ireland decision that same-sex couples can adopt children; and the use of the right to be free of torture and inhuman and degrading treatment after tragic deaths in mental health institutions.

All these cases relied on the Human Rights Act to achieve lasting improvements in their situation. Is it really plausible that all the people bringing these cases could have managed to get to Strasbourg for a hearing, also knowing that they would have to wait the customary four to five years? I suggest that the domestication of the rights in the European convention, through the Human Rights Act, was essential for justice to be done in these and many other cases.

I think it is important to remind ourselves that uses of the Human Rights Act do not necessarily involve going to court. One of the significant effects of domestic law is that well-meaning people—most people—want to comply. Carers have raised the specific human rights issues of their charges with the public service concerned, which has then responded positively. Conscientious public servants have been helped by discussions with, for instance, the British Institute of Human Rights to think again about how they can adapt their practice. The British Institute of Human Rights has trained over 40,000 people in the last 20 years in the application of the Act to their functions. I am reminded of the dictum of the great Sir Hersch Lauterpacht, the founder of the concept of crimes against humanity:

“the well-being of an individual is the … object of all law”.

The law can achieve that by simply being there.

To take this down to specific instances, a housing association specialising in people with offender backgrounds has been able to reduce their violent behaviour and thus improve the safety of residents through training in interpretation of the Human Rights Act; young people in mental health institutions have similarly been protected from grooming while still having their mobile phones for access to their families; students have secured protection for girls against sexual harassment at school; countless advocates and carers, both volunteer and professional, have obtained the exercise of rights essential to well-being for the people they look after.

There are several things that the Human Rights Act has not done, however. It did not vindicate the relationship with a pet cat as a reason not to be deported, as a reading of the judgment will show, contrary to the claim made by Theresa May MP. Unlike the original Daily Mail story that a “suspected Iraqi insurgent” “caught red-handed with bomb” had won £33,000

“because our soldiers kept him in custody for too long”,

the Iraqi, who was neither an insurgent nor a terrorist, and had no bomb, was unlawfully detained, beaten with rifle butts, punched in the face and subjected to sleep and sensory deprivation by soldiers while in custody. Fortunately, in this case, the Daily Mail, which had attributed its false interpretation to the Human Rights Act, was obliged by IPSO to make a full apology and retraction. The Human Rights Act has not supported a contention that a right to hardcore pornography exists for prisoners. There are quite a few other examples of these misleading and pernicious myths. Some of these centre on difficulties with understanding the import of Article 8, on the right to private, home and family life. This is an area where jurisprudence may be evolving—and we should try to clarify the balance that it is intended to strike.

There are some important principles in the Human Rights Act. Perhaps the first is that our judges have full discretion in determining human rights cases in the United Kingdom. The UK is the primary forum for deciding on the application of human rights to its citizens. Secondly, the Human Rights Act reflects the devolved settlement for the nations of the United Kingdom. This is of concern to the peace process in Northern Ireland. The noble and learned Lord, Lord Hope of Craighead, who regrets that he cannot take part, has encouraged me to point out that under the Scotland Act, which also gives effect to the convention rights, there is no wish to alter the arrangements and that any changes would, of course, need the consent of the Scottish Ministers. I hope that the Minister can give me the assurance that that consent would be sought.

The Human Rights Act has also been helpful in defining a public authority as one which carries out public functions. This inclusive definition acknowledges the public/private partnerships which underpin our modern public services. The Human Rights Act also establishes judicial discretion about decisions on whether the Government acted fairly in restricting our rights. It stipulates positive obligations to act in accordance with human rights, thus making them a reality; to apply laws whenever possible in a way that upholds human rights; to underline the centrality of the interests of the individual citizen; to enable modern concepts such as belief to be understood together with religion; and, most significantly, by creating a system for hearing cases in the UK rather than in the Strasbourg court it enables access for all to justice. Domestic jurisprudence will encourage the development of clarity about proper limits to non-absolute rights, so that people can understand where the balance ought to be struck. So, while there is always room for updating, these are some of the principles of our modern legislation which should be maintained.

One other effect of having the Human Rights Act as part of domestic law deserves mention: the culture that it promulgates of respect for the dignity of our fellow citizens within public services. Sadly, this is not always present, not necessarily because of callousness but because the constraints felt even by dedicated public servants of expenditure, time and targets can be allowed to prevail over what should happen. The Human Rights Act is often cited as a practical tool to support public services in their work. Thus, we are in a position to create public ownership of rights values. To entrench this, we need to teach and debate them in schools and in citizenship education generally. We can explore what the balance between conflicting rights should be and how responsibilities are a necessary corollary of rights. In a diverse society, with different faiths and backgrounds, we can cohere better around human rights.

There is another reason for promulgating a domestic human rights culture. In this country, we prefer to enable equality of opportunities rather than equality of outcomes. But the inadvertent consequence of that is that it assumes that those who fail to benefit from equal opportunities were simply not up to it and lacked the necessary qualities of one sort or another—it was their fault. We need a human rights culture to ensure that scorn for the failures in our society does not undermine a humane and compassionate approach. Respect for the individual human being is the core of human rights. Human rights are a recognition that everyone is of equal worth.

In conclusion, in his writings on the theory of justice, Amartya Sen quotes Pip in Great Expectations, that

“there is nothing… so finely felt as injustice.”

Professor Sen adds,

“and there the search begins. The idea of justice calls for comparison of actual lives and iniquities.”

That is what I hope an exploration of the impact of the Human Rights Act can uncover. I look forward with keen interest to the contribution of learned and distinguished speakers in this debate, and very much to the response of the noble and learned Lord, Lord Bellamy, whose speech in the crime reduction debate I very much admired.

--- Later in debate ---

[Baroness Whitaker (Lab)]

My Lords, it may not be often that one is instructed by one’s own debate, but I have learned much. I am extremely grateful to all the speakers who have put their wisdom, expertise and conviction to the service of one of the most important discourses of our time, perhaps of any time—one that crosses the boundaries of human nature, cultural concepts and ideas of what justice really consists of. It would be invidious, and would certainly take too long, to go through all the interesting contributions; in any case, as noble Lords have said, these debates will of course continue.

I thank the noble and learned Lord, Lord Bellamy, for his considered and thoughtful response. It opens up more grounds for debate, to which I look forward, not least on my noble friend Lady Chakrabarti’s point. When Ministers say that a Bill’s proposals will be perfectly all right because they are bound to be compatible with the Human Rights Act, what will happen if that Act has been substantially amended? But we can leave that for the next round of debates.

I have just one very quick thought. I shudder to think what the noble and learned Lord the Minister would be obliged to say if we proposed the adoption of the United Nations convention on economic and social rights. But anyway, I beg to move.

Motion agreed.