Higher education in a post-Human Rights Act world

Later today we are expecting the Queen’s Speech to formally announce the government’s intentions to repeal the Human Rights Act. It is tempting to rail against the proposal, however inchoate, and attribute the hostile HRA rhetoric to the facile and frequently flawed analyses of the legislation by the tabloid press.

There was, however, a time before the HRA, which came into effect only in 2000 and it is worth considering what would be the consequences for the HE sector if we were restored to a pre-HRA era.

A brief history of the ECHR

The European Convention on Human Rights (ECHR) was drafted by the nations of the Council of Europe, including the UK, in 1950 in the aftermath of World War II and before the creation of the European Union. Its purpose was to prevent the recurrence in Europe of the atrocities perpetrated by that conflict. It provides a check and balance on the ability of the state to interfere in the lives of individuals and promotes the rule of law. It was ratified by the UK in 1951 and by doing so, the UK accepted international legal obligations to guarantee to individuals the rights set out in the ECHR. The majority of the rights are qualified rather than absolute and can be interfered with, provided the interference is for a legitimate purpose and the interference is proportionate to that purpose. It therefore provides a valuable mechanism for balancing competing rights.

The European Court of Human Rights (“the Strasbourg Court”) was established in 1959 to ensure compliance by the 47 contracting states and its jurisdiction was recognised by the UK in 1965. That recognition afforded a right to contracting states to refer to it cases of alleged breaches of the ECHR by other contracting states. It also conferred a right on individuals, non-governmental organisations and groups of individuals who claim to be victims of violations of the ECHR by contracting states to make an application to the Strasbourg Court. A conclusion that a contracting state has violated an ECHR right does not have the effect of automatically changing UK law and practice.

A brief history of the Human Rights Act

The HRA was introduced by the Labour Government in 1998 following publication of its consultation document Bringing Rights Home. The problems that the then government sought to redress by means of the HRA were the following:

• the ability of UK courts to take into account the ECHR were limited;
• public authorities were not required by domestic law to comply with the ECHR in fulfilling their functions. Such rights had little direct impact in the hospital ward, care home, on campus and in prison in which individuals lived out their lives;
• there was no means of testing compliance with the ECHR in the UK courts – victims of breaches were required to apply to the Strasbourg Court, which was a very protracted and expensive process and made enforcing the rights more elusive;
• most other contracting states allowed for domestic enforcement of the ECHR.

In response, the HRA provided as follows:

• so far possible, legislation must be read and given effect in a way which is compatible with the ECHR, but incompatibility does not affect the validity of the legislation;
• UK courts can make a declaration of incompatibility of legislation with ECHR rights, but that declaration does not affect the validity of the legislation in question;
• UK courts have the power to provide a remedy to victims of breaches;
• courts must take into account (and not, as some would have us believe, follow) the decisions of the Strasbourg Court;
• public authorities must act in a way which is compatible with the ECHR and insofar as non-public bodies perform public functions, they must act compatibly with ECHR rights in respect of those functions.

The Conservative plan

The Conservatives have pledged to:

• repeal the HRA;
• put the text of the original ECHR into primary legislation;
• clarify the ECHR rights to reflect a proper balance between rights and responsibilities (it is not clear why this is not already achieved by the status quo);
• break the “formal” link between British courts and the ECHR – courts will no longer be required to take into account the Strasbourg Court’s decisions;
• end the ability of the Strasbourg Court to “force” the UK to change the law. (Constitutional commentators say the case is overstated);
• prevent UK laws “from being re-written by interpretation”. The pledge states that UK courts will interpret legislation “based on its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case law”;
• limit the use of human rights laws to the most serious cases – trivial cases will be struck out. (Is that not already an option open to the UK courts?);
• limit the reach of human rights cases to the UK (i.e. the rights will not be applicable to British armed forces overseas).

There is no suggestion to date that the UK would withdraw from the ECHR itself.

Brave new post-HRA world for HE

The most significant consequences for HEIs of the enactment of the HRA were the express duty on public authorities or those performing public functions to act compatibly with the rights guaranteed by the ECHR and the ability of aggrieved individuals to bring claims in our domestic courts.

The Conservatives have suggested that they will retain the wording of the ECHR but there is no indication whether the new legislation will apply to public bodies/those performing public functions or to the courts. If it doesn’t, then what? Will HEIs be at liberty to ride roughshod over individual rights?

The ECHR rights that are particularly apposite in the context of HE to date are as follows:

The right to freedom of expression, which includes the right to impart and receive ideas and information

Before the HRA came into force, the Education Act (No2) 1986 s43 was enacted to require HEIs to take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for employees, students, visiting speakers and members. Further, HEIs cannot unreasonably deny the use of their premises to any person on the ground of his/her beliefs. This would continue to apply and, though freedom of speech appears to be a narrower right than freedom of expression, the courts may not make that distinction in practice.

HEIs also have a constitutional obligation to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions. This ensures a form of freedom of expression outside of the HRA framework and preserves the right to receive, as well as impart, information and ideas. That too will continue to apply.

The right to respect for private and family life, one’s home and correspondence

There is no freestanding right to privacy in domestic common law, but case law has evolved to recognise specific rights relating to privacy, such as misuse of private information and confidentiality. In addition, various legislation requires respect for privacy in discrete circumstances, such as the data-protection regime, the regulation of interception of communications, as well as the limitations imposed on asking questions about spent criminal convictions. HEIs would continue to be bound by these privacy obligations.

The right to a fair trial

This right applies to any process which is determinative of a person’s civil rights, which include a person’s right to practise his/her chosen profession. It has therefore been considered to be relevant to proceedings under which students’ fitness to practise as doctors, nurses, teachers etc. is called into doubt and determined. This right reflects the principles of natural justice and fairness, which HEIs are obliged in any event to comply with as a matter of public and contract law. The distinguishing feature of the right to a fair hearing is the right to legal representation in fitness to practise hearings, which does not apply in ordinary internal disciplinary proceedings. Post-HRA, HEIs would no longer be obliged to permit students to be represented by lawyers or barristers. This would inevitably reduce the costs of fitness-to-practise hearings in which panels have frequently been advised by a legal assessor as a response to student representation. Given the consequences for a student of being declared unfit to practise their chosen profession, some HEIs are willing to permit legal representation in the absence of any obligation to do so.

The right to freedom of assembly

There is no comparable right of assembly either in common law or in other UK legislation. Assemblies in the form of students’ unions and trade unions exist independently of the HRA as of constitutional and statutory right respectively, and they afford opportunities for students and staff to come together for a common purpose, which is the aim of the ECHR right. Students’ unions and their clubs will continue to exist whatever the future of the HRA

The right to freedom of assembly has been used by students to engage in protest activities, but the right is limited to peaceful protests and has been unsuccessfully invoked to defend occupational protests. When challenged by means of possession proceedings, the balance has usually lain in favour of the HEI as a private landowner against student occupiers who are in effect trespassers. It is conceivable that most HEIs would maintain the status quo and continue to afford opportunities to their students to engage in peaceful protest that did not unreasonably disrupt the HEIs business, which many regard a necessary stage in the evolution of socially responsible adulthood.

New freedom for HEIs?

The repeal of the HRA is unlikely to amount to the emancipation of HEIs from a rights-constrained culture. Rights akin to those guaranteed by the ECHR are found elsewhere in the laws of the UK and will endure in HE irrespective of the fate of the HRA. I would also speculate that the ECHR rights have been so embedded in the collective psyche of our institutions that they determine the norms by which they are judged and will continue to be adhered to.