Counting the cost of human rights law

"Human rights laws cost Britain £42bn in rulings and payouts"

Daily Mail, 7 December 2010

"…the European human rights gravy train which costs British taxpayers £9billion a year. A shocking £7.1billion is swallowed by compensation payments alone following court rulings…"

Daily Express, 27 April 2011

"Britain has lost more than 200 cases in the European Court of Human Rights, at a cost of £4.4million to taxpayers."

The Sun, 27 July 2014

Human rights law being fertile ground for misunderstanding and misinformation, there's a considerable backlog of claims that we're only now looking at—such as those about its financial impact.

Be wary of any attempt to tell you what human rights laws 'cost' the government or the economy. It's very difficult to get a fix on even the level of direct compensation from human rights cases, let alone the wider effects on society.

Figures in the billions rely on an attempt to cost particular laws, which is hard, and connect those laws to a particular court judgment, which is even harder.

The Sun's more concrete figure, while correct as a cost to taxpayers from European Court of Human Rights judgments, isn't the same as the amount of compensation received by people successful at the court. It includes reimbursed legal costs and general expenses.

It's also worth mentioning the assumption often underpinning these exercises: that any such payments are unmerited. Human rights advocates might argue that a government found to have violated somebody's fundamental rights should jolly well pay up.

Billions of pounds?

Claims that taxpayers have been, and still are, on the hook for billions of pounds as a result of judgments by the European Court of Human Rights derive from a report published in 2010 by the TaxPayers' Alliance.

These are said to be the implementation costs of responding to the judgments, by changing a law or policy so that it is human rights-compliant (£17.3 billion up to 2010), and the societal costs of the Court fostering a "compensation culture" (£25 billion). The Mail's £42 billion is the total of these two, while the Express's £7.1 billion is an annual figure for the second element.

Not something that can be reliably quantified

It's difficult to prove that a particular human rights case triggered a particular policy response, and then ascribe a cost to that policy.

There are instances where we can draw a reasonably strong link between a case and a cost to the taxpayer. Matthews v UK was cited in Parliament and by the House of Commons Library as the reason for a change to the law giving older men travel concessions on public transport at the same age as women (60, where it had been 65 for men).

It's also easier to calculate the cost of a change like this, because it was expanding an existing scheme.

But in most other cases that significantly contributed to the report's total, neither the causal link nor the way the costs have been calculated are conclusive. Human rights academics have dismissed the report as "methodologically flawed".

Cause, effect and cost

For instance, a decision on the deportation of a HIV-positive criminal is said to have facilitated "ill people travelling to the UK for free treatment".

But there's no evidence given to prove a link between this case and the wider phenomenon of 'health tourism'. The man concerned was already in the country when he was diagnosed as terminally ill.

His case is different to the situation faced by a sick person in another country who may want to travel here for treatment. If they aren't dying, the case doesn't necessarily apply to their situation, and it's not obvious that many people would be able to travel in such a condition.

There's even less evidence to cost 'health tourism' at £60 million a year, as the report does.

It also links the case of Gaskin v UK, decided by the Court in 1989, to the costs imposed by the Data Protection Act 1998.

It gives these at £742 million a year, plus one-off costs of over £1.1 billion—in total, £9.3 billion between 1998 and 2009.

These figures are a 1997 estimate, made before the Act passed. A 2012 estimate came to the much lower figure of £53 million annually.

While the EU mentioned human rights as a reason for bringing in the Directive that lead in turn to the Data Protection Act, it's a stretch to say that there would be no data protection law in force at all if it weren't for Mr Gaskin's case specifically.

All in all, it's hard to disagree with the government's assessment that "accurate estimates" of the costs arising from these cases are impossible.

Human rights law and "compensation culture" aren't connected

The Express's figure of £7.1 billion connected with human rights "court rulings" every year is flatly wrong. The TaxPayers' Alliance ascribes this to a more general "compensation culture", not specific judgments, and that concept is different from human rights law anyway.

Compensation for harm—such as personal injury—suffered due to someone else's wrongdoing is down to the law of tort. An expert in that field, P.S. Atiyah, has argued that it needs reform. That's an entirely separate debate to that on human rights.

There can be compensation involved in human rights cases, but the sums involved are nothing like the TaxPayers' Alliance "ball park figure of £5 billion annually".

Millions of pounds?

The Sun gives a more plausible figure of £4.4 million for the direct cost of successful cases against the British government at the European Court of Human Rights, since 1998.

This total includes legal costs and expenses. If what you want to know is how much the 200 or so people who won a case actually received in compensation, the Court makes it more like £1.7 million (as of 2013).

That's only cases taken to Europe, of course, and compensation for breach of human rights can be awarded by a court here at home. There's no record of how many such cases there are and how much compensation they generate.

But the level of compensation has to be "relatively modest". A judge deciding a case last month awarded £10,000 each to a couple whose children were wrongly kept in foster care by Hackney Council. That's about the price of a used Skoda.

Update 2 October 2015

We removed a reference to the legal scope of the Gaskin case, pending its replacement with a more precise explanation.