One year on, the Human Rights Act has proved a measured but very moderate success: on its first anniversary, it deserves two cheers.
The act is being used to provide a principled basis for decisions which would anyway have been reached through the less satisfactory pre-convention device of "developing" the common law. No judge has said the Act has forced him to make a decision that he would not otherwise have reached, or which he considers contrary to the public interest.
Although most High Court judges have been cautious, the House of Lords has delivered several robust judgments. Most notably, the law lords have improved the constitutional protection given to citizens disadvantaged by unthinking or hide-bound bureaucrats. Previously, courts could interfere with an administrative decision only if it was irrational – if "the decision-maker had taken leave of his or her senses".
They will now be able to quash decisions which are, quite simply, unreasonable. This is an example of how the Act helps people and also improves the quality of Whitehall decision-making.
Conservatives wrongly claim the Act will prevent Parliament from legislating against terrorism. In fact, it endorses the principle of "parliamentary sovereignty", as long as the legislation makes clear the purpose of overriding the Act. That stated purpose will bind all English courtsand the Government can even avoid the consequences of an adverse decision from Strasbourg by making a formal "derogation" – an allowed breaking of a rule – from the convention.
One year on, it is too early to assess the impact. British judges have certainly done a better job than their Canadian counterparts, whose reaction to a "charter of rights" was to produce interminable decisions couched in the most turgid prose. Our efforts, however, cannot match the incisive and literary judgments from South Africa's constitutional court – no doubt because its members learnt about human rights at the sharp end.
When the subject falls out of fashion – as it may if the "war on terrorism" takes hold – we will learn what the Human Rights Act is really worth.
Geoffrey Robertson QC is head of Doughty Street Chambers and author of 'The Justice Game', published by VintageReuse content