Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to limit the use of Human Rights laws to the most serious cases and exclude “trivial” ones) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.

Hoffmann, Laws and Sumption: they come to bury the ECHR, not to praise it

Three giants of law have entered the somewhat confected debate on the Britain’s relationship with the European Convention on Human Rights and the Strasbourg human rights court. Former House of Lords judge Lord Hoffmann, current UK Supreme Court justice Lord Sumption and Court of Appeal judge Lord Justice Laws have given significant intellectual underpinning to the simplistic arguments of the Conservative Party sceptics who claim to see a democratic deficit between government policies and Strasbourg judgments. The first out of the traps was Lord Hoffmann, giving the Alba seminar in October.

Lord Hoffmann
In his section of the seminar Hoffmann declared himself wholly happy with the majority view in Liversidge v Anderson AC 206 (1942).

No news there, one might think – retired judge backs even more ancient judges in 70-year-old court case. But history’s view has hitherto been different. The case hinged on an emergency wartime order used by Home Secretary Sir John Anderson to imprison Robert Liversidge (aka Jack Perlzweig) without trial and without apparent reason except to say he had “hostile associations”. Liversidge had sued for false imprisonment.

The order, Regulation 18(b) of the Defence Regulations 1939, said: “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations … he may make an order against that person directing that he be detained.”

The issue therefore was what is meant by “reasonable cause” – and in particular, can the court decide on reasonableness or should it simply defer to the judgment of the Home Secretary – a man in place as a result of a constitutional democratic process and there to protect us all?

Four of the five Law Lords preferred judicial deference – if the Home Secretary said there were “reasonable grounds” then that should be accepted. This is Hoffmann’s position, but lawyers and scholars have generally been more interested in Lord Atkin’s minority view: that Parliament meant there to be plausible evidence for detention; if there was not, and such evidence was not presented to the court, then the judges should declare the detention unlawful. The majority decision was, on this view, unconstitutional because it substituted the judges’ view – and indeed the Government’s view – for the will of Parliament.

Hoffmann does not seem to understand this. He takes a purposive view of the legislation and so believes the judges were right to “correct” it. Since the purpose of the statute was to protect the country from Nazi spies and the like, then the powers should be whatever was required to do that. In particular, whatever the Government (not Parliament) thought was required. The “reasonable cause” qualification could be interpreted subjectively to mean “if the Home Secretary felt he had reasonable cause”. Defence of the realm trumped constitutional niceties regarding the supremacy of Parliament.