Unwelcome Remnant

It is extraordinary​ that the UK Supreme Court’s recent decision on the rights of trans people in For Women Scotland v. The Scottish Ministers completely ignores the impact of human rights law. The privacy rights of those who identify as having a gender different from the one they were assigned at birth have been jettisoned as a result of the court’s determination that the gender they thought they had left behind should be reimposed by legal diktat. There are reams of cases concerning trans people’s rights, both at the European Court of Human Rights in Strasbourg and domestically. The incorporation of the European Convention on Human Rights into UK law through the Human Rights Act of 1998 means that the relevant legislation – the Equality Act 2010 – should have been read to assure compatibility with the convention if at all possible. But this wasn’t even attempted. Instead, the court concluded that ‘sex’ in the Equality Act means ‘biological sex’. Two trans people applied to intervene (Professor Stephen Whittle and Victoria McCloud, a former judge), hoping to give a sense of what the case might mean for individuals in their situation, but only Amnesty International was given the opportunity to make the human rights argument, and its perspective was dismissed in a single paragraph of the 268-paragraph judgment. (McCloud is taking the UK to the European Court of Human Rights over the court’s failure to allow the transgender voice to be heard.) Similarly, in Fearn v. Tate Galleries from early 2023 – where local residents managed to close down a viewing platform at Tate Modern that overlooked their block of flats because they found it intrusive – human rights law was ignored in favour of the antiquated judge-made law of nuisance. Reliance on the residents’ privacy rights was ‘an unnecessary complication and distraction’, according to Lord Leggatt, the lead judge in the majority.

The Supreme Court is quietly editing the Human Rights Act out of existence. In cases where human rights cannot be ignored entirely, such as For Women Scotland and Fearn, new modes of reasoning are being used to ensure that the law under scrutiny cannot be found in breach of human rights. This trend has gathered pace since I wrote about it in the LRB of 27 January 2022. I concentrated there on the court’s powerful president, Lord Reed, and he remains by far the most important influence, but other justices have joined in: Reed led in neither of the cases just mentioned. None of this is being done in secret – the judgments are public – but the changes have barely registered. Judges, whether serving or retired, tend not to speak out. Barristers know on which side their bread is buttered. Few legal scholars have discussed these very recent developments. In a speech at Inner Temple in June this year, Reed suggested that ‘responsible criticism’ of judicial decisions should not be dismissed. Maybe the court is right to withdraw the judges from considering human rights. Maybe it is wrong. But it should at least be noticed.

Three main devices are being deployed to reduce human rights law’s impact in cases where the judges believe it has to be directly addressed. The first is a legal concept, known as the ‘margin of appreciation’, which the European Court of Human Rights uses to measure compliance with the European Convention on Human Rights in cases brought by claimants against member states. It is intended to give states some latitude in the way they give effect to convention rights, often to the point of making these rights practically unsustainable. After the Human Rights Act came into force in 2000, the generally accepted view was that the ‘margin of appreciation’ had no direct application in domestic law: British judges should focus instead on whether whatever it was they were being asked to do was within their remit, the sort of thing that judges (as opposed to civil servants or elected representatives) should be doing. In a case in 2004 arising from the war on terror, A (FC) and Others (FC) v. Secretary of State for the Home Department, Lord Bingham, the senior judge on the Appellate Committee of the House of Lords (the forerunner to today’s Supreme Court), wrote that judges’ actions should be guided by the ‘relative institutional competence’ of the courts as compared to the other two branches of state. The ‘appropriate respect’ owed by the courts to the executive and legislature was another favourite formula. Lady Hale wrote in 2008 that ‘the doctrine of the “margin of appreciation” as applied in Strasbourg has no application in domestic law.’ One of her colleagues, Lord Mance, saw it as merely a ‘principle which distributes responsibility between the international and national levels’.

Now reconceptualised by Reed and his colleagues as a domestic principle of judicial deference, the ‘margin of appreciation’ is being used to insulate governments and legislatures from scrutiny of their human rights’ compliance. There is still a show of judicial oversight, an assertion that serious abuse by Parliament or the executive will be rolled back. But litigants have to show something special to exclude themselves from the deference the courts now show the other branches of state. And if they are challenging welfare, benefit or pension decisions (which could affect their family or property rights or their right not to be discriminated against), the chances of victory are vanishingly small. These are ‘complex issues and choices of social strategy’, the judges now like to say, and to establish that your rights have been infringed you have to show that the policy affecting you adversely is ‘manifestly without reasonable foundation’.

A case from Northern Ireland, decided by the Supreme Court early this year, shows the extent of the changes that have taken place. In the matter of an application for Judicial Review by JR 123 concerns the 1978 Rehabilitation of Offenders (Northern Ireland) Order. The appellant in this case was released from prison in 1982 and had not reoffended, but still had to disclose his conviction because of the length of his sentence. UK human rights cases used to focus, as this appellant’s lawyers did, on the impact of mechanisms like this order on the privacy rights of individuals under Article 8, which provides that ‘everyone has the right to respect for his private and family life.’ Should offenders be rehabilitated – their convictions treated as ‘spent’ and no longer needing to be declared – or at least given the chance to argue that their names be removed? A decision by the Supreme Court in 2010 had held that a scheme which kept people indefinitely on the sex abuse register with no chance of having their names deleted was a breach of their convention rights. In that case the individuals had gone before the court and told their stories. Change resulted.

In JR 123 the Supreme Court focused not on the appellant’s history but on an analysis of the rules, and used the ‘margin of appreciation’ to protect the 1978 rehabilitation order from scrutiny by the court: there was, the judgment stated, ‘a wide margin of appreciation for the legislator in the present context’. Hiding an individual’s past raised ‘difficult and sensitive questions’ that called for ‘judgments to be made about social policy, involving questions of moral and political judgment’ that were ‘very much the province of the legislature’. This case shows that the concept of judicial deference is now being applied in cases beyond those dealing with tax, pensions and the like. It is glossed as being merely a new way of describing well-established principles of domestic law. But it is a very particular version of British constitutional law, which ignores the more activist aspects of the case law from the years before the Human Rights Act. The judicial restraint of earlier eras – stretching back to the 1930s and continuing through to the mid-1960s – has been made part of human rights law under cover of a contentious reading of a concept that was until very recently thought to have no role in domestic law.

The second way in which judges have reduced the impact of human rights law has been to hamper the progressive potential of the Human Rights Act. The drafters of the Act intended it to be a bill of rights for Britain, with convention rights becoming the basis for the growth of a British tradition of rights protection. The White Paper said the measure would mean that ‘our judges will be able to contribute to [the] dynamic and evolving interpretation of the convention.’ During debates on the legislation the then home secretary, Jack Straw, and the lord chancellor, Lord Irvine, made clear that, as Hale put it in an early case reflecting this orthodoxy, ‘the courts must be free to develop human rights jurisprudence and to move out in new directions.’ In an important case from 2008, re P, Mance wrote that ‘the interpretation and impact’ of the domestic rights set out in the Human Rights Act depend on the 1998 Act as they are now undoubtedly ‘part of this country’s laws’. Bingham declared in another early case that ‘it is of course open to member states to provide for rights more generous than those guaranteed by the convention.’ A question flowing from this was whether domestic courts could break fresh ground in areas left open to them by Strasbourg’s cautious use of the ‘margin of appreciation’ in specific areas, and the answer from the early cases was that this was entirely possible, indeed part of the Act’s design.

Reed’s court has now taken a sledgehammer to this position, ignoring the clear intention of the promoters of the legislation and refusing to follow the Supreme Court’s earlier guidance on the matter. The point was initially addressed in R (on the application of SC, CB and Eight Children) v. Secretary of State for Work and Pensions, a case concerning the two-child limit on child benefits, heard early in the Reed presidency, in which the court refused to develop domestic rights in a way that could encompass a fuller understanding of children’s rights. In the judgment R (AB) v. Secretary of State for Justice handed down on the same day as SC, also unanimous, also a single judgment written by Reed, the point was hammered home: ‘It is not the function of our domestic courts to establish new principles of convention law.’ A later case (also Reed; also unanimous), R (Elan-Cane) v. Secretary of State for the Home Department, saw off re P and the earlier authorities in brutal fashion. There was nothing authoritative, this judgment says, about the earlier cases’ commitment to developing convention rights domestically. The comments in re P supporting this were, ‘it was reasonably clear,’ no more than obiter – not key to the decision the judges had to make, and thus not required to be followed. In any case, the judges’ position had been based on a misunderstanding: ‘The courts’ role in lawmaking is confined to the development of the common law.’

Third, a recent group of cases prevents litigants from being able to challenge in advance general rules that will clearly infringe the rights of many people, even if they have not yet done so. The importance of being able to challenge a law with a manifestly debilitating rights impact is obvious if you see human rights as a framework that should shape executive and legislative action and not merely as a lever employed to address past harms: if a rule likely to infringe human rights is in the offing, why wait until the worst happens? Though the issue was never definitively settled, judges in the first years after the passing of the Human Rights Act generally thought it should be possible to mount a successful challenge if the legislation could be shown to have negative human rights implications in a ‘legally significant number of cases’. An alternative test held that a breach would have to be likely in ‘all or nearly all’ cases, which would effectively insulate rules from abstract challenge. Litigants would have to wait until the rule was deployed against them, and often, particularly where immigration is concerned, they would be unlikely to have the funds to contrive the decision against them – by, for example, forking out to apply for the visa they are bound to be denied.

The ‘all or nearly all’ test has now been firmly embedded in the law as a result of two recent and unanimous Supreme Court judgments, Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill and JR 123. The first of these concerned a measure passed by the Northern Ireland Assembly that criminalised certain kinds of behaviour in designated zones around abortion clinics. A Supreme Court composed of seven members (the number used in significant cases) found that the proposed law did not breach the convention. The single judgment in the case was yet again written by Reed. The proposed legislation, involving important issues related to protest and safety, was found perfectly capable of surviving scrutiny if it could be shown that it would not infringe convention rights in ‘all or nearly all’ of the situations to which it was applied. This was an outcome made all the more likely when the margin of appreciation was taken into account. The alternative test – a breach in ‘a legally significant number of cases’ – should not be used, Reed said, claiming that Hale’s assessment in an earlier case ‘did not state the test accurately’.

JR 123 was, as I have mentioned already, a case involving the Rehabilitation of Offenders (Northern Ireland) Order, which organises its clemency according to the crime committed and the seriousness of the sentence. The scale is a sliding one, but for some offences and any sentences longer than thirty months there is no provision for rehabilitation. General measures, the court found, ‘served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing, on a case by case basis’ every individual application for exemption that might be launched. The rehabilitation of offenders was ‘obviously a context in which it [was] legitimate for a state to enact a regime in the form of a general measure, announcing in advance clear, generally applicable rules to cover all cases’. It was ‘desirable that society as a whole and offenders themselves should be able to understand clearly how the rehabilitation regime operates and that the scope for arbitrariness in its application should be minimised’. Even the European Court of Human Rights had stated that the ‘more convincing the general justifications for the general measure are, the less importance the court will attach to its impact in the particular case’. The Human Rights Act may still be law but it is the government’s judgment of the public interest that is decisive.

There​ are further indications that the Supreme Court’s approach to human rights has changed. Restrictive rules on standing – sufficient involvement to have the legal right to challenge a decision – inhibit public interest groups from using the Act. Interventions by people not directly involved in a case are increasingly unlikely to be allowed, as Whittle and McCloud found to their cost in For Women Scotland. A decision reached in 2021, DPP v. Ziegler, in which Reed did not participate and which appeared to offer political protesters the chance to argue that their ostensibly criminal actions were not ‘unreasonable’, as the judge in the magistrates’ court put it, was the subject of a ferocious attack by Reed in the Safe Access Zones case the following year (Ziegler concerned protesters who had blocked an entrance to an arms fair). In its judgment in DPP v. Cuciurean in 2022 the High Court had already rowed back on the decision in Ziegler that protesters could argue that a criminal conviction would be disproportionate if the offence was one where it is a defence to have a ‘lawful excuse’. It is only a matter of time before the decision is pared back or discarded.

Dissenting judgments have become vanishingly rare in the field of human rights law. Even separate judgments, stating a difference of opinion on some aspect of a case while agreeing with the overall outcome, are now highly unusual. One of the last dissents was by Reed himself during Hale’s presidency of the Supreme Court. It concerned the court’s refusal to follow Strasbourg authority in R v. Hallam (2019), a case concerning compensation for victims of miscarriages of justice. It may seem surprising that Reed dissented in a case in which the Supreme Court was trying to sidestep Strasbourg authority. In fact, that judgment – and another decided early this year – are key to understanding his motivation. In R v. Hallam (2019) Reed subjected the Strasbourg case law to an intense examination on an important but technical part of criminal justice law, leading to a conclusion which was at odds with the one reached by the majority of his colleagues, but so exceptional is Reed’s analytical prowess that it had an air of inevitability about it. He did the same in the SC child benefits case in 2021, contriving an outcome unwelcome to the claimants out of the Strasbourg precedents on which they had relied. Although he is Scottish, Reed is a champion of the English common law, a believer in precedent and the stability it delivers. This loyalty to authority extends to the Strasbourg court, which despite the merely directive language of Section 2 of the Human Rights Act, is in Reed’s view to be followed except in the rarest of cases.

In Abbasi v. Newcastle upon Tyne Hospitals NHS Foundation Trust and Haastrup v. King’s College Hospital NHS Foundation Trust, decided just before For Women Scotland, the central issue was how much control there should be over information released about legal proceedings involving end-of-life decisions related to young children, a matter which had already generated great division and litigation in the lower courts. The issue was resolved in a subtle way by a (once again) unanimous court with Reed (once again) giving the main judgment, on this occasion jointly with Lord Briggs. The resolution of a side-issue gives further clues about Reed’s approach to litigation in general and human rights litigation in particular. What should be the position of clinicians in a hospital when applications are made to set aside restrictions on public information after the death of the child concerned? Reed and Briggs shared a concern that if these doctors’ names were revealed they would receive a torrent of abuse from distraught family members and others. (A rare concurring judgment, from Lord Sales, focused on the need to show special solicitude to clinicians.) But, allowing for the occasional exceptional case, the court was clear that the doctors should launch their own legal actions. They should become proper parties and not piggyback on the interest their hospital had once had. Litigation is about those with a direct interest in a case fighting it out, one-on-one, unassisted by intervening parties, even when, as in this case, they are large organisations with deeper pockets and greater institutional clout than the litigant.

In Abbasi the court acknowledged the reception into the common law of a new tort rooted in the misuse of private information, possibly amounting to the invasion of privacy. This would once have been seen for what it was, a change to UK law achieved by the convention – specifically, by the privacy right under Article 8 – but in the Abbasi judgment it is presented as a piece of domestic creativity, albeit driven by the convention. In recent times, according to Reed and Briggs,

the courts have been willing to develop the common law when necessary in order to meet the requirements of the convention, and have deprecated the tendency in some earlier cases to see the law solely in terms of the convention itself … In particular, the common law has evolved to provide a cause of action protecting rights relating to privacy.

The​ current members of the Supreme Court, ten men and two women, all of them white, seem to regard the Human Rights Act as an unwelcome remnant of a past era. One of the clearest intentions of the drafters of the Human Rights Act and the legislators who enacted the measure was that it should include private bodies exercising public functions – Section 6 of the Act was explicit about this, and an early conservative reading by the courts was greatly narrowed by legislative amendment. But a recent decision by the High Court, Sammut v. Next Steps Mental Healthcare Ltd, has sought to resurrect that early reading to protect for-profit businesses operating in the public sector from exposure to human rights accountability. The case (in which I was counsel on the losing side) involved the protection of a private commercial entity from human rights scrutiny concerning its treatment of a young man who was in its care under various statutory provisions and whose costs were being met by the local authority. My client died, and the company was held to be negligent. But it escaped scrutiny on a host of wider matters as a result of being effectively accorded judicial immunity from accountability on human rights issues.

The current Supreme Court may even be tempted to dispose of the sacred cow at the heart of human rights litigation, the power under Section 3 of the Act, supported by many cases from the pre-Reed court, to reconstruct legislation in order to ensure its compatibility with convention rights. There is a legitimate point here about the uncertainty created by radical judicial changes to legislation which do not appear on the statutory record, and Reed and his colleagues might well make much of this if the opportunity arises. But their approach means that at the moment there are no apparent breaches of human rights to consider.

In his Inner Temple speech, Reed said that the courts have been ‘more attentive to the separation of powers’ than in the past but that earlier ‘more ambitious decisions and dicta … have not been forgotten.’ Will this defanging protect human rights law from hostile attention from its political opponents? The answer is almost certainly not: Reed and his colleagues can prevent new controversies but they cannot undo what the convention and its application in domestic law have already achieved. This is the result of the interaction between the European convention, the Strasbourg case law, the Human Rights Act and the case law underpinning it. You cannot throw foreigners out of the country if they face a serious risk of a breach of their right to life or their right not to be tortured or subjected to inhuman or degrading treatment in the place you plan to send them. You have to take account of someone’s family life when you consider removing them, especially if they have children who have been born and brought up here. If you plan on doing any of this, it can be stopped by interim order of either the Strasbourg or local courts. To get rid of such obstacles, it would be necessary to repeal the Human Rights Act, and also – to ensure that you won’t be liable at the international level – to leave the Council of Europe, joining Belarus and Russia in their denial of the jurisdiction of the European Court of Human Rights. You would then need to pass special laws allowing people to be sent to near certain death, after being treated with a harshness that is explicitly inhuman or degrading.

That truly would be taking back control. It is where domestic politics may end up. If Keir Starmer’s government were to repeal the Human Rights Act we would be back to the endless quarrelling with Strasbourg that was a feature of the pre-Blair years, with Thatcher berating foreign judges for getting it wrong. It was the nonsense of the ECHR hearing argument on issues on which British courts could not volunteer an opinion that led judges like Bingham to favour incorporation of the convention; this was the reason Blair in opposition labelled his plan ‘Bringing Rights Home’. Domestic judges cannot undo the case law of the Strasbourg court that so irritates a section of the political class and its journalist outriders. But they are doing everything short of that to make human rights as much of a domestic legal irrelevance as possible.