Dr Parnesh Sharma is the author of The Human Rights Act and the Assault on Liberty: Rights and Asylum in the UK

Comment: How did the Human Rights Act go so wrong?

Comment: How did the Human Rights Act go so wrong?

By Dr Parnesh Sharma

When the Human Rights Act was first introduced in 1997, as a key component of the then-newly elected Labour government's constitutional reforms, a widely-promoted objective of the Act was to bring about a 'culture of rights'. Not many knew quite what that meant, but it sounded noble and suited the mood of an eager and idealistic crop of just-elected MPs too long confined to the opposition bench.

It was a reflection of the times. The Act was introduced during a period of much soul-searching about the nature of British society and a perception of society rife with racism, social exclusion, and a deepening divide between the haves and have-nots. These very issues were being laid bare in the late 1990s by the then-ongoing public inquiry into the race-motivated murder of Stephen Lawrence and its scandal of uncaring authorities and bungled investigations. The Act was born of an ambitious hope that enhancing awareness of human rights would in turn result in a culture of rights, in a more inclusive, more caring Britain.

The coming-into-effect of the Act in 2000 was indeed heady days. Many politicians, academics, and advocates got carried away by its rhetoric and promises. Some called it a 'social revolution' and the 'most significant change to British law since the Magna Carta'.

That it has turned out to be a rather less has surprised very few cynics. In fact the Act never really had much of a chance with Labour disowning it almost as soon as it became law. And as Sir Stephen Sedley had warned, society's existing 'winners and losers' are turning out to be the same winners and losers under the Act.

How did it go so wrong for what began as a noble adventure – of bringing rights home (whatever that meant) – and why so much hand-wringing over a 'social revolution' that has yet to come about?

Well, for one thing, it's great political theatre and it comes in handy for beating-up sissy do-gooders who would rather stand up for criminals, terrorists, and asylum-seekers than hard-working Britons.

Relentless tabloid attacks and intemperate criticisms by its architects have ensured that many have come to see the Act as un-British – for creating a culture of entitlement, not of rights; for protecting the rights of criminals and outsiders at the expense of citizens. That the Act has done neither is beside the point.

Many want it to be limited in application if not outright repealed. And that includes Tony Blair, the person most responsible for its introduction. To be sure the Act proved a convenient scapegoat for various administrative shortcomings and policy failures during his tenure as prime minister, but it also proved to be an occasional thorn. Blair made no secret of his desire to limit the reach of the Act. In this he was joined by senior ministers, chiefly David Blunkett, who railed against it in rather impolite language.

The process of denigration started by Blair and Blunkett has continued under the Conservatives, who, to be fair, never supported the Act and had promised to repeal it when in opposition. And now that they are in government – albeit in a tenuous minority – they appear poised to do precisely that.

Strange, though, how the Act should be seen as doing something which it has miserably failed to do: that is, offer real protection to the powerless and marginalised of society.

Examples abound in asylum. Even though the Act has done little to protect asylum-seekers against ill-liberal policies, it has been primarily in asylum (and a few high-profile terrorist cases) that the Act has come a cropper. It hasn't really offered much protection but that hasn't stopped the right-wing media and politicians from laying waste to it – mostly because those seen 'winning' human rights claims are generally viewed as 'cheats' and worse.

The dominant narrative in asylum is almost exclusively about undeserving outsiders, and that the UK has lost control of its borders and is being 'swamped' by 'bogus refugees'. The blame for this apparent calamitous turn of events has been put squarely on the Act. As a former leader of the Conservatives wrote: Britain is being "taken for a ride" (by asylum-seekers) and "we are at the end of our tether".

A look back at the events of 2002-2005, precipitated by a surge of upwards of 90,000 asylum applications, offers some insight. That is when Labour introduced a rather odious piece of legislation, Section 55 of the Nationality, Immigration and Asylum Act 2002 was aimed at deterring asylum-seekers from entering the UK and encouraging those already here to leave voluntarily. The means chosen, however, had the effect of forcing thousands of asylum-seekers into destitution. And it was deliberate.

Section 55 became law by a sleight of hand – as a last-minute amendment to a bill already before the House of Commons. When questions were raised about its human rights implications, the ever dismissive Blunkett, then home secretary, guillotined debate in parliament. Liberty, the Refugee Council, and other organisations almost immediately recognised the intent and danger posed by the legislation and, with the Human Rights Act in hand, challenged the policy in courts. After a long and bruising three-year battle they emerged victors, much to the anger of Labour and Blunkett, who was described by the tabloids as 'spitting blood' in fury at the courts.

This hard-fought victory should have been a happy result for human rights advocates, but it has not been so.

True, the victory provided respite for destitute asylum-seekers, but the situation for them today remains pretty much the same. The get-tough measures and ill-treatment of asylum-seekers continues. In this and other respects the Act has not lived up to expectations. It has failed to deliver.

Possibly too much was expected. A culture of rights does not magically take root overnight. Among other things it requires an ideological shift – from viewing rights as unnecessary in common law UK or viewing rights as a charter for criminals and outsiders (at the expense of the rights of Britons) to viewing rights as important for the individual and greater good of society.

It also requires vigorous and sustained commitment by the government of the day. And that seems as unlikely today as it has been since inception.

Dr Parnesh Sharma is the author of The Human Rights Act and the Assault on Liberty: Rights and Asylum in the UK, published by Nottingham University Press

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