The Tories are now threatening to repeal the Human Rights Act 1998 (HRA). If the Tories carry out their threat, it will no longer be possible to sue a public authority directly for infringing one’s Convention rights. How shall those of us whose rights public authorities infringe obtain a remedy, if the HRA is repealed?
I believe I have had a partial answer to that question for about a year now. I hope that there is a test case soon, that will establish whether I am right about this.
It so happens that about a year ago, I began to consider alternative ways of defending one’s rights against public authorities, without using the HRA s7(1)(a). The impetus for this research on my part was my thinking about the hypothetical case of somebody who might one day be tempted to consider suing one of the intelligence services under the HRA. It is possible to do this in theory. However, because of a provision of the Regulation of Investigatory Powers Act 2000 (RIPA), in practice, any case brought against an intelligence service under the HRA s7(1)(a), is not heard in open court, under the Civil Procedure Rules (CPR), but secretly, in the Investigatory Powers Tribunal (IPT), under very different rules indeed.
In such a case, the IPT can only do one of two things:
(1) tell the claimant that his human rights have indeed been infringed, but not tell him how, when or why, nor put a stop to the infringements
(2) tell the claimant that his human rights have not been infringed, but not tell him either whether this is (a) because what he apprehends has been done to him has not been done after all, or (b) because this or that was done to him exactly as he apprehends (or something different), but all of it was lawful, being proportionate to a legitimate aim, or whatever other excuse there might be.
Up until the date on which civil servant Dr Elizabeth Fitton-Higgins at the Covert Surveillance Policy Team, within the Intelligence and Security Liaison Unit at the Home Office wrote back to me giving me the figures, the breakdown between outcome (1) and outcome (2) in the IPT was:
- Outcome (1) – claimant wins – 0% of cases heard
- Outcome (2) – defendant wins – 100% of cases heard
This depressing statistic made it potentially desirable to dream up a way, God willing, for somebody to sue an intelligence service, in open court, under the CPR. (One never knows when somebody one might meet in everyday life might need to do something like this.)
To cut a long story short, I believe that I discovered last year that the Protection From Harassment Act 1997 (PHA) would often be a suitable tool, for doing the job of protecting one’s rights against a public authority. It is a tool that anybody could try to use even now, even against an intelligence service, if they did not fancy their (slim) chances with the tame and secretive IPT. Provided, that is, the infringement of their rights (of the HRA rights the Tories plan to confiscate, that is) consisted of a course of conduct that amounted to harassment. The PHA will presumably remain a tool that will still be able to be used against other public authorities, even if a future Tory government plunges British jurisprudence into utter turmoil, by repealing the HRA.
Another thing that is good about the PHA, apart from getting harassment claims against intelligence services into open court, is that the limitation period is six years (or maybe longer if the harassment has been continuous across the limitation threshold). That’s a lot longer than the 12 month limitation period of the HRA s7(1)(a).
If the Tories, having read this little blog post, also repeal the PHA along with the HRA, or amend RIPA to route PHA claims against intelligence services to the IPT the way that HRA s7(1)(a) claims are routed to the IPT now, I suppose you will have to blame me for this, for having discovered the loophole in RIPA, and having mentioned it publicly, here, today.
I have a similar project on the go, by the way, this time to find a way of challenging child safeguarding social workers, without having to use other secret courts that are not much better than the IPT, the family courts. I think I have made a discovery here that will be even more important, and a great blessing for children who have one parent whom they never see (for example). I’ll leave it until another day to tell you about that though.