In defence of the Human Rights Act - laws must change with society

The law must adapt to remain relevant. The changing interpretation of human rights is entirely in line with our best legal traditions.

Connor Johnston
30 January 2015

The aftermath of the terrorist attacks on the French satirical newspaper, Charlie Hebdo, has seen a number of leading political figures calling for the security services to be given greater powers to monitor our data, as a means to detect and prevent similar attacks in future. For the Conservatives, David Cameron and Boris Johnson have led the charge, with Cameron pledging to legislate to provide for increased State scrutiny of our telephone and internet usage if elected in May. The proposals have caused dismay among civil liberties campaigners who feel that the measures would be overly intrusive, and that there is a concerning lack of transparency around the use of such powers.

The extent to which the State should be able to interfere in our private affairs and in our home life, is a familiar debate in Britain. The right to respect for one’s home is perhaps one of the oldest rights protected by the law in this country. Famously, clause 29 of Magna Carta 1297 (25 Edw I, c.4) provides that ‘no freeman may be taken or imprisoned or disseised of his Freehold’ except by due process of law: a clause which mirrored a concession in the original charter signed by King John at Runnymede in 1215, intended to protect the lands of the rebel Barons from arbitrary confiscation by the King. This protection was reproduced in a stream of medieval statutes until the time of Henry VI.[1]

At common law this right to respect for one’s home found expression in seminal cases such as Wilkes and Wood.[2] Wilkes – John Wilkes MP – was the editor of the supposedly seditious North Briton newspaper. On 30 April 1762, Mr Wood, together with ‘several of the King's messengers, and a constable’ entered Wilkes’ house and proceeded to break open his locks and search his papers. The purpose of the search related to Wilkes’ authorship of a particularly inflammatory editorial in the North Briton which was said to libel the King, the Lords and Commons at once. The search was carried out under the auspices of a ‘general warrant’ issued by the Secretary of State, Lord Halifax. These general warrants did not need to specify the name of any particular person, but allowed the bearer to break into the house of any individual deemed worthy of suspicion and seize his goods. Upon hearing the case the Lord Chief Justice declared the practice of issuing these warrants to ‘effect the person and property of every man in this kingdom’ and to be ‘totally subversive of the liberty of the subject’. The jury, having deliberated until close to midnight, found for Wilkes and awarded him damages of £1,000.

It is this history which, no doubt, led to the notion that an Englishman's home is his castle becoming, to quote one recently retired judge of the Court of Appeal, ‘firmly embedded in English folklore’. And it was the legal protection encapsulated in this idiom which came to form the basis of Article 8 European Convention on Human Rights, which secures for everyone within the jurisdiction of the treaty the right to respect for his or her private and family life, home and correspondence. The Convention, which was signed by the United Kingdon in Rome on 4 November 1950 and which came into force on 3 September 1953 – under Churchill’s final premiership – was not intended to provide any great leap forward in the legal protection available in many of the State parties to the Convention. The travaux preparatoires to Article 8 of the Convention (the preparatory documents recording amendments made during the drafting process), include the observation that, at time of drafting, ‘privacy [and] the sanctity of the home… were protected under the constitutions or laws of most, if not all, countries’ already. For many years this was used by the Government of the day as a means to resist first, allowing individuals the right to complain directly to the European Court, and latterly, calls to enshrine the Convention in domestic legislation. Speaking out against the right to complain directly to the court in Parliament in 1958 the Lord Chancellor, David Maxwell Fyfe – chairman of the legal committee involved in drafting the Convention – declared such protection unnecessary since ‘our law does guarantee for our citizens the rights and freedoms that are contained in the Convention’.

But if this blythe assertion was ever true, it certainly ceased to be the case as time passed and the Convention evolved. In 2002 the European Court, considering the late Diane Pretty’s ‘right to die’ in the case of Pretty v UK, remarked that Article 8 had developed to encompass the notions of self-determination and personal autonomy. In Manchester City Council v Pinnock the Supreme Court held that domestic law, in order to keep pace with the Strasbourg case law, must finally recognize that an individual faced with eviction from his or her home should at the last instance be able to rely on Article 8 by way of a defence. And shortly before Christmas, the Court of Appeal in Gudanaviciene and others v Director of Legal Aid Casework affirmed that Article 8 may, in certain limited circumstances, oblige the State to provide legal aid to a migrant who is seeking to challenge his or her removal from the UK as unlawful, where that is necessary to ensure a fair hearing.

Does this mean that the ambit of Article 8 has extended beyond that which was intended when it was originally drafted? In my view, yes. The facts of the case of IS – one of the migrants at the centre of the Gudanaviciene litigation – provide a usefull illustration. IS, who had a profound cognitive impairment, sought legal aid to try and regularize his immigration status so that he could apply for community care services. Dealing with the three legal issues this raises in turn, immigration control was a relatively novel concept in the UK in 1950 at the time the Convention was signed. The Aliens Act 1905 placed some restrictions on the rights of certain migrants to live and work in the UK, but the Nationality Act 1948 allowed for British subjects and commonwealth citizens to come and go freely.[3] Similarly, legal aid was in its infancy, the Legal Aid and Advice Act 1949 having only recently been enacted, replacing the piecemeal assistance which had been available to impoverished Defendants under statutes such as the Poor Prisoners’ Defence Acts of 1903 and 1930. Meanwhile, community care services were a radical innovation of the post-war Welfare State contained in the National Assistance Act 1948, section 1 of which abolished the cold-hearted poor laws that had existed in various forms since Tudor times, when Henry VIII’s dissolution of the monasteries removed the main source of alms for the poor, leading to the enactment of the Vagabonds Act 1531.[4] It is wholly improbable that the draftsman behind the Convention would ever have conceived that Article 8 might combine these social and legal developments to provide a vulnerable migrant with a right to legal aid to help him access community care services.

Does this mean that the Convention has gone too far? In my view, no. The Convention has often been described as a ‘living instrument’. And if it is to remain relevant and useful as the norms of society shift, as technology develops and State practices change, then it is essential that it should be so. The law has always had to adapt in this way. Witness the Lord Chief Justice’s response to the emerging 18th century government practice of issuing general warrants to deal with individuals such as John Wilkes, deemed to be thorns in the side of the establishment.

This, I think, is the argument that we need to make as we approach the next election, facing increasing numbers of politicians bent on the repeal of the Human Rights Act 1998. Let us not pretend that instruments like the Convention have not changed well beyond that which was envisioned 60 years ago. But equally let us not accept that this is something new or undesirable or in any way out of keeping with traditions of which we should be justifiably proud.


This article first appeared in Socialist Lawyer. We are publishing it as part of our Great Charter Convention series.

[1] E.g. 11 Ric II, c.10, 4 Hen IV, c.23 and 15 Hen VI, c.4. See further J.H. Baker ‘An introduction to English Legal History’ (Butterworths, 2nd Edn 1979).

[2] (1763) Lofft 1, 98 ER 489

[3] See Macdonald’s ‘Immigration Law and Practice’ (Butterworths, 7th Edn 2008)

[4] See B. Inglis ‘Poverty and the Industrial Revolution’ (Panther, 1971).


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