Updated (4 Aug 2010)
Army generals are notorious for fighting the last war instead of the current one. Human rights campaigners may be in danger of the same mistake if they get their strategy wrong for the new coalition government.
The great civil liberties fight of the last decade centered on New Labour’s anti-terrorism measures. Keystone issues such as stop and search, 42-day detention without charge and control orders caught the public imagination and have been the subject of bitterly fought and largely successful campaigns by rights groups.
The other significant fights have been over the so-called surveillance state; for example CCTV, the DNA database and ASBOs, all of which are now being considered for reform by the new government.
On the face of it the coalition has listened to campaigners. But it is wrong to view the series of early policy reversals – for example over stop and search, the DNA database and ID cards – as revolutionary. Rather, the government has been forced to respond to critical European Court of Human Rights judgments on DNA and stop and search. ID cards represented a golden win-win policy as they were both unpopular and hugely expensive.
Moreover, no significant political capital has been expended in rolling back New Labour anti-terrorist policies, which arguably represented emergency responses to a terrorist threat which has for the moment been subdued. Meanwhile, policies which are yet to be reversed are being mopping up by the courts with highly critical decisions in other controversial areas, such as control orders and the use of secret evidence. It is now over five years since the 7/7 bombings, and whilst terrorism is still a significant threat it is simply no longer front and centre in the public mind.
What is now at the forefront is, to paraphrase Bill Clinton, the economy, stupid. Austerity, budget cuts and job losses dominate the headlines. This represents, or should represent, the great battlefront for human rights campaigners over the next five years as well as a golden opportunity to increase the popularity of the much maligned Human Rights Act.
Many jobs will be lost due to public sector cuts, and this is already an issue which involves human rights law. The Fawcett Society has recently revealed that it is launching a judicial review against the coalition budget on the basis that the government should have assessed whether its proposals would increase or reduce inequality between women and men. This is just the kind of creative challenge which can be brought under the wide protections afforded by the Human Rights Act.
Reforms to the benefits system will leave many more surviving from a shrinking pot, and this is likely to lead to add to calls for economic and social rights to supplement the Human Rights Act. The government has pledged to “investigate” the creation of a British Bill of Rights that incorporates and builds on obligations under the European Convention on Human Rights. This Commission needs to be watched carefully in case it seeks to reduce protections under the HRA though the back door. Other areas which may be open to challenges include the removal of the mandatory retirement age as well as revised public sector redundancy packages.
Another less glamorous but still important issue is access to justice. For example, it is scandalous that despite millions spent on Government IT, the public still do not have access to an up-to-date statute law database, an essential pre-requisite of open justice as well as a basic democratic requirement. The excellent BAILII in addition to the proliferation of legal blogs has increased access to recent case-law analysis, but the government has to do its part too.
That being said, bad policy can only be challenged if prospective challengers have the funds to do so. The coming “brutal” legal aid cuts will reduce the public money available for such challenges and the slack will have to be taken up by rights groups unless the cuts can be successfully challenged in the courts, which seems unlikely. Even more worrying is the ever shrinking funds for the criminal justice system, a problem which pre-existed but has been exacerbated by the economic crisis.
The Human Rights Act will shortly celebrate its first decade in operation. Its passing into law coincided almost exactly with the ‘War on Terror’, and it is therefore understandable that many of the most visible and successful early challenges brought under it have involved anti-terrorism policies. But such victories have also caused many of the public to see the Human Rights Act as an instrument which only protects a handful of suspected terrorists. For example, control orders have been the subject of a huge amount of campaigner attention as well as court time but have actually affected under 50 people since they were introduced in 2005.
The economic crisis will affect millions for the worse, but it does provide an excellent opportunity for rights campaigners to show that human rights are for all, and not just for terrorists. A successful strategy in this new battleground will be useful to many, and may also help secure the future of the Human Rights Act.
Update 4/8/10: See Katie Ghose’s (director of the British Institute of Human Rights) July 7 article making a similar point here. She says: “Given the antipathy of some in the Conservative party to the Human Rights Act, and the government’s pledge in its coalition agreement to set up a commission to review the act and investigate the possible creation of a British bill of rights, human rights may not seem an obvious way to tackle the challenges faced by public sector managers – but it could prove a powerful tool.”
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