Making Human Rights Real is an anniversary present for lawyers. Published to coincide with the end of the first decade of the Human Rights Act 1998 (HRA), it sets out to evaluate the Act’s effectiveness. The authors, Ian Leigh and Roger Masterman, respectively professor and lecturer in law at Durham University, describe the purpose of the book as a critical assessment of whether the Act is achieving the objectives laid out in the White Paper, Rights Brought Home,Footnote ¹ that heralded the introduction of the Act, that is, ‘whether it is living up to the claims made by the judiciary and others when it was introduced’ (preface). Whilst the useful concluding sections of each chapter aim to address these questions, the authors make no real attempt to extend this evaluation outside the courtroom or the statute book, ignoring the evidence produced by the British Institute of Human Rights and others of the impact of the Act on public authorities and the recipients of their services.

The book is divided into two sections. The first is mostly devoted to addressing some of the key legal debates on the architecture of the Act. These include its impact on the separation of powers doctrine, the role of parliamentary scrutiny, the credibility – or otherwise – of the claim that the HRA has enhanced dialogue between the judiciary, executive and legislature, the vexed issue of the appropriate relationship between domestic and Strasbourg jurisprudence and the tightrope the courts have had to manoeuvre between their interpretative and declaratory roles (sections 3 and 4 HRA, respectively).

Some of this material, although thoughtful and clarifying, covers well-trodden ground, such as the distinction between the traditional common law Wednesbury standard of review and the international human rights proportionality approach, or the uncomfortable fit between the Strasbourg margin of appreciation doctrine and domestic judicial deference to the executive. Other sections are fresher. There is a lengthy and forensic coverage of the ongoing saga about the appropriate interpretation of section 2 of the HRA, which imposes a duty on the domestic courts to take into account Strasbourg jurisprudence. Over the decade, our judges have disputed whether their role is effectively to mirror the judicial reasoning of the European Court of Human Rights (ECtHR), as determined by Lord Bingham in Regina v. Special Adjudicator (Respondent) ex parte Ullah,Footnote ² or to develop ‘a municipal law of human rights’, as Laws LJ put it in Runa Begum v. Tower Hamlets.Footnote ³ The authors conclude, rightly in my view, that the courts’ obligation could ‘arguably be satisfied by simply considering the Strasbourg authority put before it’, so that ‘having taken the decision into account they would not be obliged to follow or apply its reasoning’ (p. 53). They quote the legal academic Andrew Clapham as arguing that the courts have the ‘autonomy to interpret the relevant international human rights so as to make them appropriate to the national culture’ (p. 66).

When the mirror approach was in the ascendency – it has received a bit of a knock back since the book was published – the courts were ‘adopting an almost deferential attitude to the Strasbourg court’ (p. 63), the authors comment, promoting a ‘rigid interpretation of s2(1). . .in stark contrast to the progressive approach to Strasbourg jurisprudence seemingly envisaged by the government’ when the HRA was introduced (p. 63). This ‘self-denying ordinance’ (p. 70), Leigh and Masterman suggest, is rooted in the traditional account of the separation of powers doctrine associated with parliamentary sovereignty, rather than the plain words of the HRA or the parliamentary debate which introduced it.

The second part of the book is labelled ‘Domestic Remedies for Violations of Convention Rights’. It is a less discursive, more descriptive, account of the impact of the HRA on public and civil law, criminal trials and counter-terrorism, including a useful survey of the post 9/11 panoply of measures, coupled with an evaluation of whether the HRA has been a restraining force or merely a political inconvenience (the conclusion seems to be a bit of both).

There is also a very useful section on the less well-explored area of horizontal rights, or the extent that the HRA applies to infringements between private parties. Drawing on comparative material from jurisdictions such as Canada, New Zealand and South Africa, the authors conclude that the domestic courts have used a conservative approach to applying the HRA in the private sphere, partly due to the limits of ECHR jurisprudence (back to the constraining effects of the mirror approach again) and partly due to their own disinclination. Try telling that to the tabloids! Most of them are in a permanent state of fury that the HRA has imported what they characterise to be an alien right to privacy which is curtailing their capacity to expose the intimate lives of celebrities, limiting their competitiveness in an ever-shrinking media market. As with the section on crime, the gulf between the lawyer’s view of the impact of the HRA and its popular presentation in some of the media could scarcely be wider.

The book ends with a short chapter which, despite the earlier nuanced discussion on the role of the domestic courts in interpreting ECHR case-law, concludes that the HRA must ‘function[s] in the shadow of Strasbourg’ (p. 293). The authors appear to want it both ways. They assert the independence of the domestic courts to depart from Strasbourg jurisprudence, but not if this leads to outcomes they dislike. Their defence would be that the further that domestic interpretation departs from the ‘canon’ of ECHR case-law, the more it undermines the objective of the HRA to ‘bring rights home’ (p. 292). Whilst warning against the ‘Euro-sceptical’ and ‘incoherent’ approach of the leadership of the Conservative Party, intent on repealing the HRA and replacing it with something more ‘British’ (p. 298), there is no attempt to analyse whether the UK courts’ sometimes slavish following of Strasbourg case-law has contributed to this position. Given the centrality of this debate to the future of the HRA, it is disappointing that the authors deal with it almost in passing, displaying a certain naivety about the role of politics in the fortunes of any bill of rights.

The authors are right to warn that as the HRA approaches its tenth birthday its future is uncertain. But some of the reasons they give for describing themselves as ‘a little downbeat’ in comparison to ‘the euphoria and expectation’ that greeted the Act’s introduction (p. 295) – its effects on counter-terrorism or criminal justice policies and its constitutional status – are the very same reasons there has been a head of steam to replace the HRA with a ‘British bill of rights and responsibilities’ which would curb its reach. The difference is that, for these critics, the HRA has been too expansive, and for Leigh and Masterman too limited. A discussion of how these opposing worldviews might begin to be bridged is missing from this otherwise timely, useful and largely comprehensive account.