Andrew Warnock QC (Chair of Research, Society for Conservative Lawyers) written evidence 

Should we keep the Human Rights Act (“HRA”) and why?

1.    No. Alternatively, if we do it should be amended.

2.    I would emphasise that I have no disagreement with any of the rights scheduled to the Act (as taken from the European Convention for the Protection of Human Rights and Fundamental Freedoms: “the Convention”) as such. As statements of fundamental freedoms and political and civic rights they are hard to better. My concern is more to do with how those rights have been applied and interpreted. In a submission to the coalition government’s Human Rights Commission I, along with Lords Faulks QC and my colleague Simon Murray, said this:

“The HRA itself is not working. A convention which was intended to protect “human rights and fundamental freedoms” has become associated instead in the public mind, not without some justification, with dubious compensation claims, complaints about the trivial, the protection of lawbreakers rather than the law abiding majority, a transfer of decision making on economic and social policy to judges and the enrichment of lawyers. “Human rights” claims feature significantly incompensationclaimsbroughtbyprisoners,  oftenforminor    grievances.

A further disadvantage with the HRA is its express reliance on the European Convention on Human Rights and Strasbourg jurisprudence. When enacted, it was intended that this should “bring rights home”, resulting in fewer cases where UK litigants had to petition the Strasbourg Court. In practice, what has happened is that the HRA has simply introduced a domestic tier of litigation, with individuals who are disappointed with the decisions of our own Court of Appeal or Supreme Court petitioning Strasbourg as though it were an appellate court. (Conversely, when the government or public authority loses in the domestic courts it has no further right of appeal). As the Commission has advised in its interim report to the government, this is not a function which it was originally intended the Strasbourg Court should have. “

3.    I remain of those views. A fresh start is required. We need a re-launch of human rights in the UK with a particularly British focus that seeks to bring public opinion with it.

4.    There is scope for some re-balancing of the rights by Parliament. So for instance, a new Bill of Rights might emphasise the importance of freedom of expression, which is to be trumped only in exceptional circumstances such as where defamatory material is published. (Although created by a decision of the Court of Justice of the European Union, rather than the European Court of Human Rights, the so-called “right to be forgotten” concerns me as a move in the direction of a society where the truth may be buried or history rewritten). Parliament might also wish to consider a re-balancing of the right to respect for private and family life under article 8 so as to give greater importance than is always given now to legal certainty and the interests of a democratic society as a whole.

5.    The focus of this submission, however, is on how the HRA is increasingly being used as a tort statute, that being the area where I come across the Act most in my professional practice. This use may feed a public perception that human rights are part of a “compensation culture” which largely benefits lawyers.

6.    I would make the following observations:

1.    Although Lord Bingham said (in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 15 at para 19) that the HRA is not a “tort statute”, in practice that is essentially what it has become;

2.    The HRA has been used to create novel forms of liability not previously recognised by UK common law. This has been done in two ways:

(1)  By influencing the development of the common law. An example of this is the creation of a common law liability in damages on social workers and local authorities for failing to make the right calls or responses in child protection cases. The House of Lords had held in X v Bedfordshire County Council [1995] 2 AC 633 that it would not be fair just or reasonable to impose a tortious duty of care on those tasked by statute to protect the public for errors made in good faith. In D v East Berkshire [2003] EWCA Civ 1151 the Court of Appeal held that the implementation of the HRA removed the policy reasons against denying a cause of action for negligence at common law, because individuals could now seek damages for mistakes under the 1998 Act. The result has been a large number of claims for compensation against local authorities by individuals alleging that they should have been removed

from their parents earlier (or in some cases claiming that they should not have been removed).

(2)  By the creation of new torts:

a.    One example is the recognition of a right to sue the police for alleged mistakes in their investigation of crime. The Supreme Court have recently have affirmed (in Michael v Chief Constable of South Wales) that the common law does not recognise such a claim, in large part because it would divert resources from policing to litigation. The absence of a common law claim is likely to be of limited comfort to police forces, however, because the Supreme Court also held that the police could be liable under the HRA. Claims for substantial damages under the HRA are increasingly being brought against the police. Initially, the claims were under Article 2 (so-called “Osman” claims for failing to protect life). More recently, successful claims for damages have been brought for the distress caused by police delay in investigating allegations of servitude (under article 4: OOO v Commissioner for the Metropolitan police [2011] EWHC 1246) and for investigative failings in relation to rapes committed by a London taxi driver (under article 3: DSD v Commissioner for the Metropolitan Police [2015] EWCA 646). The claimants in OOO and DSD were innocent victims of crime and so may be considered deserving of a remedy for police failings, although as was recognised by the courts in ruling out common law claims such a remedy comes at a cost. However, compensation claims may also be brought by those who have put their own lives at risk by, for instance, engaging in drug or gang related criminal activity. It would be surprising if the risk of liability under the Human Rights Act does not affect policing priorities, which arguably ought to be left to chief constables and elected authorities such as police and crime commissioners.

b.    Another example is the Supreme Court’s decision in R (Sturnham) v Parole Board for England and Wales [2013] UKSC 47 that prisoners could recover damages under article 5.4 of the ECHR for delays in considering their applications for paroles. The Court held that damages could be awarded for the presumed “distress” caused by the delay even where the decision eventually reached by the parole board was that the prisoner should be released.

3.    Although the courts have often drawn attention to the fact that the remedy of damages under section 8 of the HRA is “discretionary”, to be made only where the court is satisfied that the award “is necessary to afford just satisfaction” (see for instance Dyson MR’s judgment in the DSD case), the approach approved by the Supreme Court in Sturnham was to hold that where actual, caused, loss could be established on the balance of probabilities, it should be assessed and awarded, this being consistent with the European Court of Human Rights’ approach of awarding “restitutio in integrum” i.e. putting the claimant into the position he or she would have been had the breach not occurred.

4.    Section 7(5) of the HRA provides that proceedings under that Act must be brought before the end of “(a) the period of one year beginning with the date on which the act complained of took place” or “(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances”. In claims where the HRA is relied upon to seek awards of damages for past infringements, the Courts have tended to extend time limits under section 7(5)(b). In Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 the Supreme Court held that the discretion to allow a longer period than one year under 7(5)(b) was a broad one; Baroness Hale (with whom two other judges agreed, making this a majority observation) said that claims for damages for breaches of the HRA “is more in the nature of a claim in tort than for judicial review”.

5.    A significant feature of claims for compensation under the Human Rights Act is their cost. Legal costs are typically many multiples of awards of damages. For instance, in claims involving social services, the legal costs of a claim which settles for tens of thousands of pounds will often exceed £100,000. Since many local authorities carry excesses of at least £250,000 (and sometimes considerably more) money which could be paying for more front line social workers today is diverted to litigation which dwells on the past. The mounting costs of litigating, together with the risks local authorities face in defending cases which are inevitably judged with the benefit of time and hindsight not available to those who made the decisions in the first place, means that large number of claims settle.

What should a new Bill of Rights Contain?

7.    Whether it is considered desirable for public authorities to be liable in damages for failings in the delivery of protective services which have been funded by the public involves policy choices, primarily between compensating individuals for the mistakes of the past and protecting the budgets and services of the present.

8.    However, given our continued membership of the Council of Europe and European Convention on Human Rights (which is current government policy), a blanket removal of a right to damages under a proposed Bill of Rights may face challenges in the domestic courts. Domestic courts may be attracted to arguments that the common law should be developed to fill the gap between a domestic Bill of Rights and the UK’s international obligations. Even if damages were not to be available under a domestic Bill of Rights, claimants will still have a right of individual petition to Strasbourg for such a remedy.

9.    This country has a developed system for the compensation of all victims of crime in the form of the Criminal Injuries Compensation Scheme (“CICS”). This scheme has the virtue that it compensates all victims who suffer personal injury by reason of crime (subject to certain qualifications concerning their own behaviour) whether they had prior involvement with a public authority or not. Applicants do not usually require lawyers. It may be that one factor which has influenced the courts in the development of new torts for “failures to protect” by public authorities is a belief on part of judges that the Criminal Injuries Compensation Scheme awards are not generous enough. Whether that belief is well-founded may be debatable, as is the fairness of the system developed by the courts whereby some victims of crime may achieve larger rewards than others, depending upon whether they can point to “fault” on the part of statutory authorities. It might be possible to defend a system which adjudicated upon claimed human rights breaches, but did not provide for a remedy of damages, if the Courts could be satisfied that adequate compensatory remedies were available under the CICS. It may be the case that Parliament could make a policy choice within its margin of appreciation not to allow individual claims for damages for “failures to protect” on the basis that this would deplete funds otherwise available to compensate all victims of crime

10.  Short of providing that damages may not be recovered under a Bill of Rights, other measures might be considered:

1.    Including an express statutory provision that the Bill of Rights is not a tort statute and should be construed accordingly;

2.    Tightening of the limitation period, so that extensions of a 1 year period are made only in “exceptional” circumstances;

3.    Restricting the right to claim damages in certain circumstances, for instance where the claimant himself does not have “clean hands”. There is precedent for this in the jurisprudence of the ECHR, in that it declined to award damages in the case of the IRA terrorists shot dead by the SAS in Gibraltar because they themselves were on a bombing mission (McCann v UK (1995) EHRR 97);

4.    Setting up a specialist tribunal to consider damages claims under the Bill of Rights, where claims may be heard by specialist judges and potentially be subject to fixed or limited costs recovery. Care would need to be taken to ensure that any such regime did not infringe a right of access to judicial determination under article 6 by precluding adequate legal representation, but specialist tribunals have worked successfully and costs effectively in other areas, including employment and special educational needs.

11.  Consideration should also be given to restoring the immunity of social services at common law in relation to the exercise of their statutory functions in good faith, thus putting them on an equal footing with the police and other regulatory and protective public services.

12.  I have additionally touched above on my views that freedom of expression should be accorded special protection and greater emphasis given to legal certainty and the rights of society as a whole in the application of article 8.