Assuming Gearty is right, this goes a long way to explaining why, by and large, most judges and senior lawyers have not struggled to apply the HRA as intended. In 2010, when the Act had already been in force for a decade, the former Lord Chief Justice Tom Bingham asserted that to his knowledge there has not been ‘any judicial complaint that the Act requires judges to decide questions unsuitable for judicial decision’. 160 The current President of the Supreme Court Lord Neuberger has recently contrasted the current era with ‘the dark ages, the period before 1951, when the UK simply did not recognise human rights other than through the common law’ which ‘was in many ways the origin and promoter of individual rights [but] it developed such rights in a somewhat haphazard and leisurely way’. He concluded:
I think that the introduction of the Convention into UK law has been a breath of fresh air for the judiciary, the legal profession and legal academics. I think it has made us more questioning about our accepted ideas and assumptions. 161
Critiques and controversies
Neuberger might be right that the HRA has been ‘a breath of fresh air for the judiciary’, but very early into its life it was deluged by a torrent of cold air. Tabloid hostility to the Act greeted its birth and preceded any cases, but it was the reaction of political leaders, ranging from discomfort to hostility, which was to set the tone. To my mind a third, more controversial, factor has led to the current impasse on the HRA’s future, which could inelegantly be described as ‘legalism’. It is the fusion of these three factors that has proved so combustible.