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When the Independent Human Rights Act Review (IHRAR) was announced, the Human Rights in Action (HRiA) team were reassured, on the one hand, to see that its overriding mission would be to consider how the Human Rights Act (HRA) is working in practice and whether any change is needed. But on the other hand, we were concerned, first by the fact that the IHRAR’s “terms of reference frame[d] the review against a politically polarised backdrop - concerning how it allegedly allows the judiciary to usurp the power of the executive for instance” and, secondly, by the fact that the terms of reference “fail to ask the cardinal question of whether the HRA has effectively protected individual rights in the UK”. As academic human rights experts who have observed, analysed and, in collaboration with others, worked to promote – through our scholarship, teaching and public engagement activity – the indisputable positive influence of the HRA in protecting human rights in the UK, we were strongly motivated to join forces, with the ambition of providing comprehensive, evidence-based responses to the key questions being asked by the IHRAR. The HRiA project reflects, and is the mechanism that allows us to pursue, this ambition. In the context of this project, the HRiA team invited some of the foremost human rights experts in their fields to answer the fundamental question of how the HRA has shaped UK law and UK courts over the last two decades, and to consider the questions that the IHRAR asked in its call for evidence. The HRiA submission to the IHRAR comprises 20 contributions by 26 experts which provide answers to some of the IHRAR’s central questions, while taking particular care to highlight the continuous positive impact of the HRA in human rights protection in the UK. The individual expert contributions are reproduced in their entirety in this submission, and we are submitting them to the IHRAR with the hope that they will inform its work. We feel that, read together, they highlight the significant value of the HRA to the lives of everyone in the UK. Taking into account that this report is not a submission from a single author but a product created by a group of independent experts, we have exceeded the suggested maximum word count for a single submission. We have made all of the contributions from the HRiA project available on our website, which we will continue to update with new contributions in the future. In addition to informing the IHRAR’s work, we remain committed to engaging with the wider public to show the positive impact of the HRA and alerting them to the risks inherent in the potential undermining of its key protections.

This article is concerned with the return of torture and other related abusive conduct to the British counter-insurgency arsenal following the initiation of military engagements in Afghanistan and Iraq in the early 2000s. It focuses primarily on how judges have engaged with the challenges that this torture and abusive conduct have posed, both in their capacity as judges proper and also as appointees to a range of inquiries that have been initiated in the wake of these actions. The article contrasts the post-2001 work of judges with that during an earlier episode when such state abuse was also evident, Northern Ireland in the 1970s. Arguing that the judiciary has been drawn into the fray much more heavily than in the 1970s and across a great range of platforms, the article analyses this judicial involvement and posits explanations for it against the backdrop of a changing UK politico-legal culture.

The principle of requiring executive power to be justified works well where that justification is rooted in reasoned argument, and it is even more effective when it is also required to be tested against substantive human rights principles. But what happens when the justification supplied for coercive action by a state is rooted in a socio-legal tradition that is not rooted in the liberal and constitutionalist tradition? In such circumstances the power may continue to be mediated by law but the veneer of legality and of human rights compliance will be thin indeed. Judicial decisions drawn from the UK and the European Court of Human Rights are deployed to demonstrate the point and so to highlight one of the difficulties about mapping Dyzenhaus’s argument onto the politics that we encounter today rather than the politics we would like to have.

The reaction to 11 September damaged the liberty of those living in Europe who found themselves targeted as suspect terrorists while seeming to do little to ensure the security of the wider community. More recently a second emergency, rooted this time in the financial and economic collapse of 2008 onwards, has caused a further unravelling of Europe's constitutional project, even threatening the gains of past generations of European idealists. In today's Europe universal liberty and security have no meaning for many even if their shape is retained in structures that in truth mock rather than deliver democracy and human rights. This article traces the origins of the crises that have afflicted so directly the breadth of liberty and human security in the Union, demonstrating their roots in ‘viruses’ that have been present from the start of the European movement but which have now spiralled out of control. The essay ends by asking what can be done to prevent the full decline of the region into a state of neo-democratic/post-democratic unfreedom, one in which capital unbound from democracy thrives at the expense of the people.

It is increasingly clear that anthropogenic climate change is a real and destructive phenomenon. Glimpses of this reality are everywhere and ever more numerous. Extreme weather events, in particular, resonate strongly through the public psyche, carried by viral media images: devastation in the Philippines in the aftermath of Typhoon Hayan; the haunting white grip of the −50C ice vortex in the United States of America; extreme heat and bushfires in Australia; extensive flooding in the United Kingdom. Such events – just this year alone – and the human stories emerging from the statistics of tragedy speak directly of the human and environmental effects of climate change. Some of the social impacts of such events are obvious – others less so. Not everyone watching the news coverage of the United Kingdom flooding this European winter will be aware, for example, of the fields full of dead badgers and raw sewage or of rats invading homes to escape newly submerged sewers – or of the complex ecosystem implications for crops, planned production patterns, economic futures, legal and regulatory responses and other numerous – and not always predictable – outcomes. Nor will everyone be aware of the complex social impacts of such events: on the one hand, communities uniting to help one another, on the other hand, looting, predation and fear.

It is acknowledged that traditional approaches to human rights can have and have had a negative impact in the field of environmental protection. But the emphasis in human rights on controlling the abuse of power and its capacity to equip social movements with a language of protest and a platform for change shows the potential for mutually beneficial connections between the two fields. The use made by environmental activists of various human rights that are to be found in international and regional laws is considered, as well as the way new social movements in the environmental arena have deployed the language of rights to promote their goals. It is concluded that a mutually reciprocal relationship between the two fields is both possible and – given the threat of climate change – essential.

In the drive to tackle extremism, debate is being undermined and fear is driving the agenda. Conor Gearty makes the case for common sense

Youssef nada is a 77-year-old man, who lives in the tiny commune of Campione in Switzerland. He is not allowed to leave this commune. Nor can he access his financial accounts, despite being a senior figure in the world of banking. The problem Mr Nada faces is that his bank, the Al Taqwa bank, is associated with the Moslem Brotherhood and that Mr Nada—an Egyptian by birth—is also connected with this organisation. Among his adversaries is the Egyptian Government of Hosni Mubarak, which desires to get him back to Cairo, where it is clear his safety could by no means be guaranteed. After the attacks of 11 September 2001, Mr Nada also incurred the enmity of the US Government. He found himself placed on a UN sanctions black-list—hence the restrictions on his movement and financial dealings.

This article explores a possible link between ‘neo-democratic’ states (the subject of a recent book by the author) and the underlying politico-economic ideology of our post-1989 world, neo-liberalism. Taking the United Kingdom and the United States as examples, it argues that the shift in our way of looking at the world that neo-liberalism represents involves a forsaking of many of the assumptions of the social democratic polity of the 20th century. However, this is not a leap into an unknown future so much as it is a return to a particular past. In the threatened transition to fully fledged neo-liberalism, ‘neo-democracy’ fulfils a useful role as mask that hides from us the great political, ethical and legal changes entailed in such a move.

There is no reason to repeal the Human Rights Act and the government’s manifesto commitment to do so should be dropped. The objections to it are misconceived, the arguments against it being based either on inaccurate understandings of what it says or error-strewn assertions about the nature of its impact. The political motive for attacking the Act – to undermine the UK’s association with Europe – has been overtaken by the much greater European disengagement of BREXIT.

If it is to be fair, an appraisal of the state of freedom of expression in Britain during the prime ministership of Tony Blair must avoid three traps into which civil libertarian zealots in general – and free speech enthusiasts in particular – often fall. Seductive though they might appear to the already passionate, these wrong turnings risk plunging civil libertarians into a dark hole so far removed from the lived experiences of the general public that their perspective on freedom loses all persuasive power as a result. The first of these is the temptation to deny history. This particular lament takes a number of forms: the current prime minister and/or home secretary are the worst in living memory; the ‘erosion’ or even ‘destruction’ of our civil liberties is gathering pace at an ‘unprecedented’ rate; governmental animosity towards Britain’s traditional freedoms ‘has never been stronger’. But these are the kinds of things that have been said about every government, at least since the early 1970s. In truth there has never been a ‘golden age’ of freedom from which to mark the start of our current ‘decline’. Even the civil libertarian Roy Jenkins did not escape from it, when he introduced the first prevention of terrorism legislation (with its bans on politico-military associations) in 1974. Merlyn Rees was a particular hate-figure to activists when he was home secretary in the 1970s, as was Roy Mason in the Northern Ireland Office. During this period, official secrets prosecutions, expulsions of journalists and abuse of police powers were commonly front-page news. Then came the Thatcher years, when discussion about the decline of freedom became to all intents and purposes received wisdom: the media ban, the Spycatcher injunctions and the Official Secrets Act 1989 were just some of the anti-free speech highlights of the 1980s. Even John Major’s administration produced similar stories in the 1990s, with anxieties about executive hostility towards the judiciary then being at their height: Kenneth Baker, David Waddington and Michael Howard were at least as controversial in their day as John Reid, Charles Clarke and David Blunkett have been in theirs. If the first thing we need to do is recover our memories, the second is to re-establish a sense of proportion. Civil libertarians have long been inclined towards intemperate language. In the 1980s, activists set up organisations with names like Charter 88 and Samizdat, specifically linking the situation in Britain with that of central Europe under communist rule. There was much talk then – as

From the moment of their emergence, democracies everywhere have been alive to the importance of their survival. This institutionalised anxiety has meant that radical critiques of power differentials and wealth-inequality (which survive in all democracies) have been vulnerable to being cast as challenges not to injustice but to the integrity of democracy itself. This is the deep root of counter-terrorism law today, now not applied to a plausible threat from the radical left but rather to extreme criminal acts which, however heinous these might be, do not directly challenge the state. As inequality in democracies grows and opportunities for orthodox political change are reduced by the increasing power of money, so old style anti-radical laws are increasingly combined with contemporary terrorism laws to stifle extra-parliamentary dissent. This takes place through the deployment of political and legal devices the effect of which is to allow the continued appearance of democracy while reducing its egalitarian impact in practice.

TORTURE IS WRONG AND INEFFECTIVE. SO HOW IS IT MAKING A COMEBACK?

(2003). R Provost International Human Rights and Humanitarian Law. South African Journal on Human Rights: Vol. 19, No. 2, pp. 339-347.

The term ‘human rights’ succeeds by the breadth of its application: across law, politics and culture. It functions effectively in the fields of international, regional and domestic law, while also being an important player in the world of international relations. And while doing all this, it finds time too to stand for something above politics and law, the force of goodness in the world, the importance of each individual (no matter how weak) within every polity (no matter how strong). How has the idea of human rights achieved this level of influence? What are its main challenges today? What sort of future lies in store for such universal entitlements? This article offers a broad review of the origins of human rights, their current effectiveness and the likely directions open to the subject in the years ahead. Its themes are drawn from the range of disciplines that make human rights possible. Against the odds the author finds in the resilience of human rights reasons for hope for a better future, one in which the good work done by the term greatly exceeds the damage of which – as history and current practice well shows – it is also immensely capable.

This article critically appraises the UK government's recently published Consultation Paper on the future of the anti-terrorism laws. The author considers the likely effect of the Human Rights Act 1998 on the impact of any legislation that might flow from the government's proposals. The interaction between human rights law and anti-terrorism legislation provides a useful case study of the likely effects of incorporating the European Convention on Human Rights into domestic law. The author argues that many of these effects have not been anticipated by the drafters of the anti-terrorism proposals, with the result that many of their suggested changes to the law will be vulnerable to legal challenge if not sharply modified before enactment. The author concludes by considering the likelihood that, over time, successive governments will learn to tailor their legislation to the requirements of the Convention, even in the anti-terrorism field, but that in the short-term a period of legislative instability is to be expected.

The European Court of Justice and the United Nations blacklisting regime - Background, case-law and conflict in relation to that regime - The Kadi II case - wider constitutional dimensions of the ruling - theoretical aspects of the dispute from rule of law perspective - the future

The quest for the articulation of human dignity within the confines of the law invariably involves consideration of what the relevant human rights law can be said to require in any given case. This often then leads to consideration of what can be plausibly described as the basic needs of the individual whose claim is before the court. The law does not generally supply the certainty of meaning that might have been expected from a discipline which is widely (and usually rightly) appreciated for its commitment to clarity and predictability. Human dignity remains an elusive concept in law, begging more questions of judges than it supplies. Seeking to flesh out in law a meaning for human dignity which can then be required of society raises important questions of competence and democratic legitimacy. The chapter concludes with some suggestions as to the appropriate role for the litigation process in the protection and promotion of human dignity.

The two big ethical ideas to emerge victorious from the short twentieth century were human rights and democracy. Initially an old trope revived to rally elite morale during the Second World War, the first of these (human rights) was useful to the designers of the second, the controlled democracies that were then being constructed in the loser-states of Germany, Italy and Japan. After this brief moment centre-stage, however, both rather lost their universalist lustre, with human rights being sidetracked off into an international arena of pious declarations and unenforceable agreements while a respect for state sovereignty that was indifferent to domestic political arrangements fast became the norm at the UN. Their time came again in the 1970s with both being dusted down for use once more, this time in the late Cold War as a convenient stick with which the West felt able to beat its communist rivals. Just as in 1945, the success that flowed from the breakthroughs of 1989 produced democratic/human rights nation-building on a grand scale. Almost to an (ex)-comrade, the post-Soviet and post-Soviet-bloc states chose forms of government that declared themselves to be democratic while at the same time ostensibly respectful of the human rights of all those within their borders. Federal arrangements were carefully designed, bicameral legislatures lovingly re-created from training sessions on Capitol Hill, presidents constituted to embody their states while being simultaneously dependant on the will of their people. And in very many of these schemes, overseeing this tumultuous worker-bee activities in these new hives of democratic freedom were the various Constitutional Courts, given over-riding responsibility for the protection of human rights.