Great Britain Finally Makes It to the Eighteenth Century

Norman Barry, a contributing editor of Ideas on Liberty, is professor of social and political theory at the University of Buckingham in the UK. He is the author of An Introduction to Modern Political Theory (St. Martin’s Press).

On October 2, 2000, the Human Rights Act came into force in Britain.¹ Given that the United States has had its Bill of Rights since 1791, the French revolutionaries issued the Rights of Man and the Citizen in 1789, and all major European countries have codes that protect fundamental liberties from the ravages of, at first, monarchs and now parliaments, Britain might appear to have been an uncivilized dictatorship for the last 200 years. The lack of a written constitution and separation of powers would normally combine to produce tyranny even in a formal democracy. Yet they clearly haven’t in Britain. Why?

To constitutional traditionalists the question is almost impertinent. We don’t need newfangled documents, they say; we have the common law, free elections, and the sovereignty of Parliament to protect our fundamental liberties. The Americans and the Europeans only have the rights that are specified in the code or constitution, but under the common law you can do anything except that which is specifically forbidden. F. A. Hayek, an uncritical admirer of that jurisprudence, actually thought that more rights would exist under the common law than under any bill of rights.² But that was never convincing since statute law has caused much depredation of these unwritten rights and the judiciary is powerless to strike down offending legislation. Even some conservatives began to fear “elective dictatorship” under the Labor Government of the late 1970s.

But it wasn’t just statute law that was a threat to liberties. The common law of libel had spontaneously developed to form a real barrier to freedom of speech, and without a constitution and a First Amendment this precious right depended on the unpredictability of the judiciary. A British statute had made most tort cases subject only to a judge for the verdict and damages (so that the country avoided some of the excesses of American tort law), but libel was exempt. In such cases not only do the payments rival American tort cases, but the law constitutes a real inhibition to free expression.³

But the real problem for rights theorists was the existence of sovereignty itself and the absence of serious judicial review.⁴ It is true that the courts have been diligent in their scrutiny of powers, under acts of Parliament, exercised by ministers. (Indeed, Freddie Laker could only start up his cheap transatlantic airline through a court decision that ended the monopoly of the [then] nationalized airline.) But they could not strike down an act of Parliament. Many conservatives were critical of rights documents for another reason. If a country had a long civil rights tradition (as Britain has) it wouldn’t need a document anyway; and if it didn’t, such a written constitution would be useless against a dictator. A written document would simply lead to vexatious litigation and involve judicial meddling in public policy.

Human Rights in Britain

Still, Britain has for the last 40 years enjoyed a crypto-protection from a rights-threatening government. As a signatory to the European Convention on Human Rights (1950), she had always accepted adverse decisions of the European Court of Human Rights (this has nothing to do with the European Union and its Court of Justice) and amended offending domestic legislation accordingly. Britain’s record before the European Court of Human Rights in Strasbourg looks pretty bad precisely because there was no remedy available at home.

Thus in a series of cases Britain was condemned for allowing caning in schools, cruel treatment of Irish Republican Army suspects in Northern Ireland, refusing to allow female Commonwealth immigrants to bring their husbands into the country (if the law had also forbidden the entry of wives it would have been legitimate), and many other, fairly minor depredations of rights. The trouble with this approach was its delay and cost—it normally took about five years for a case to be heard at an average price of over $42,000. Under the new domestic legislation, British courts can hear the cases and pronounce a verdict. A human rights claim becomes economically as routine as the legal aspect of purchasing a house or getting a divorce.

The new statute embodies the Convention directly into domestic law, and from a classical liberal perspective it is not at all bad. It lists the basic negative rights, including the right to life; it prohibits torture and slavery, guarantees free expression, privacy, and family life; grants the right to a fair trial; and prohibits retrospective criminal law. There are no welfare rights (apart from a vague right to education, although even here it is certain that the Convention would outlaw a state ban on private schooling). It is addressed to government, although the notion of the public is drawn widely enough to envelop most private-sector activity.

Some of the rights are “absolute,” such as the right to life (made so by the ban on the death penalty introduced by way of a protocol added later), and some have to be balanced against each other, such as the right to privacy with the right to free expression. There is even a protection for property—the right to “the peaceful enjoyment of possession” is stated in Article One of the First Protocol. However, this has to be balanced against the license for government to take actions necessary for the protection of the public interest. The Duke of Westminster fell foul of this when, in the 1980s in Strasbourg, he claimed that his property rights had been violated by the 1967 Leasehold Reform Act, which gave lessees the opportunity to buy out the freeholds at favorable prices. His problem was that he is a very rich man who owned a large number of desirable London properties. A Viennese lady was similarly unsuccessful when she protested a rent control law in Austria.

However, the fear of classical liberals is that the creativity of judiciaries (and judges throughout the Western world have developed a left bias) will convert the negative rights into positive obligations on government. A good example is the right to life (Article 2). Does this mean that persons have an unlimited claim to health care with no balancing against cost? In a domestic case in 1995 ® v. Cambridge PB), a child with leukemia was refused treatment under the National Health Service on grounds of cost—by reference to the National Health Service and Community Care Act (1990). Most legal observers feel that the plaintiffs would win if the case were brought today. One shudders at the economic implications of this in a system that puts the bulk of health spending in the hands of the government. What happens if they get to work on the right to education?

But the European Court itself was comparatively modest in its activism. Compensation awards are really rather low. Still, despite some praise for its human rights verdicts, it has angered conservatives on occasion. The S.A.S. (a specialist antiterrorist unit of the British Army) shot dead three known IRA members who were planning an explosion in Gibraltar. Their families brought cases to Strasbourg and the authorities were criticized (basically for not giving a warning to the IRA men), although no compensation was awarded.

Furthermore, the prohibition (Article 7) against retroactive criminal law was not strictly adhered to in two cases in 1996. Two men were convicted of raping their wives, even though an ancient common-law ruling by Lord Hale had made husbands immune from such prosecutions. They took their cases to Strasbourg after the Law Lords in Britain upheld the convictions. The European Human Rights Court said that a long line of precedents indicated that the law would be changed and that the men concerned should have been aware of this. Although no one would want to defend rapists, the decision was a little disturbing because it illustrated a jurisprudence that has become far too prevalent in America. This is outcome-oriented law, in which some desirable decision is identified and implemented whatever the legal processes involved. Even the late Lord Denning, notorious for twisting the common law to bring about some vague notion of abstract “justice,” was unhappy with the original overturning of Hale’s ruling. He correctly argued that Parliament should have passed a one-line statute subjecting husbands to the law of rape.

The vexed question of sovereignty is tackled in the new statute. Courts now have a legal duty to interpret law (either a pre-existing statute or one passed after October 2, 2000) within the framework of the new Human Rights Act. Although they do not have the power to invalidate a law in conflict with it, they may issue a “declaration of incompatibility,” which is addressed to the government (with its majority in Parliament) to change the law. There is a fast-track procedure via delegated legislation. But the Lord Chancellor (chief law officer under the British system) has explicitly said that Parliament could always refuse to implement the judiciary’s proposed change. There will be no U.S.-style Supreme Court in Britain.

Leaving aside the sovereignty question, there is a need to consider the change in judicial practice that the Human Rights Act will produce. Historically, in common-law jurisdictions courts have interpreted statutes almost literally, rigorously observed precedent, and left it to legislatures to develop the law in politically determined directions. Now the courts will do the developing because they will have to read regular domestic law in line with the Act. In code countries, where the judiciary is not bound by precedent, a court refers to the code to determine the meaning and purpose of law in difficult cases. British judges will have to do something similar when they adjudicate, for example, cases involving privacy and freedom of expression. An early challenge is almost certain to be against the Official Secrets Act, which forbids almost any disclosure of government information by, among others, retired officials publishing their memoirs. How are they to balance the right to free expression against the public interest? What was originally a political matter now becomes judicial.

Economic Rights

Apart from the diluted right to property, there are no specific economic rights in the new Act. But all is not lost for just as commercial advertising has been the accidental beneficiary of the First Amendment in America, so economic interests should gain from a strict interpretation of the negative rights enunciated now in Britain. Ernest Saunders has already won a case in Strasbourg over his treatment during the Guiness investigation. This arose out of the most notorious business scandal of the 1980s.⁵ In the battle for control of Distillers (which was achieved by a share swap), Saunders, chairman of Guinness, and his accomplices were convicted (among other things) for an illegal scheme to keep the share price high. However, the Department of Trade and Industry used the Daconian Companies Act (1987), which gives suspects virtually no rights in an investigation. Saunders brought a case to Strasbourg arguing that the compulsion for him to give evidence, which the statute permits, amounted to self-incrimination (forbidden by Article 6 of the Convention). He was successful, although his convictions, which were based on that evidence, were not overturned.

It was a delightful example of unintended consequences, as I am sure the Court had no particular affection for corporate raiders. It is quite possible that Saunders will reopen his case and try to get his convictions overturned under the new British law. There may be other opportunities to bring economic questions into the judiciary, for example, the power of regulators to control business and grant privileges may well be challenged, although some observers fear that the right to privacy may well be used to prevent companies’ reading the e-mails of their employees (even if they are sent on company-owned machines).

A Good Act?

From a classical-liberal and even a conservative perspective, the verdict on the Human Rights Act must be cautiously favorable. We have long bewailed the power explicit in the sovereignty of Parliament and had never believed Dicey’s famous claim that it was somehow consistent with the rule of law.^[6] And we have always advised judicial remedies to problems rather than the familiar and unreliable political and majoritarian prophylactics. However, that optimism about the judiciary has been seriously tempered in the past three decades. The U.S. Supreme Court has not properly protected economic liberties since 1937,^[7] and its adventurous expansion of civil liberties, especially in discrimination cases, has burdened business significantly. The European Court of Human Rights has been no different, and the British judiciary, because of the debilitating effect of Parliamentary sovereignty, has rarely been given the opportunity to adjudicate on economic questions.

It would certainly be better if Europe could develop in such a way that there is genuine jurisdictional competition (as there used to be in the United States). There might be a need for an overarching legal rights framework, but this could be mild and unintrusive. People would simply migrate to areas with less regulation and more protection for property. But this will not happen in Europe (or Britain): the European Union had its own set of rights waiting for approval at a summit in Nice in December 2000. These rights, to be adjudicated presumably by the European Court of Justice, whose rulings are binding across European Union members, will not merely duplicate the Convention, they will be more extensive and intrusive. The more rights we have the less valuable they become. No fundamental charter, sacred document, or pristine constitution can repeal the laws of human and social behavior.

Notes

1. 1.   The law was passed in 1998 and has been operative in Scotland since 1999.
2. 2.   See Norman Barry, “Hayek’s Theory of Law,” Journal des Economistes et des Etudes Humaines, vol. 9, 1999, pp. 371-85.
3. 3.   The law of libel has been slightly eased through case law and a statute (Defamation Act, 1996). It is said that these improvements were unconnected with the Convention on Human Rights.
4. 4.   In relation to Europe, the British Parliament is no longer sovereign. See Norman Barry, “Sovereignty, the Rule of Recognition and Constitutional Stability in Britain,” Hume Papers on Public Policy, vol. 2, 1994.
5. 5.   See Norman Barry, Business Ethics (London: Macmillan, 1998), pp. 139-41.
6. 6.   See Norman Barry, An Introduction to Modern Political Theory (London: Macmillan, 2000), pp. 50-53.
7. 7.   See Norman Barry, “The Constitutional Protection of Economic Liberty, Ideas on Liberty, November 2000.