Human Rights in the United Kingdom: New Jurist article 15the September 2015

In October 2014, the day after their annual conference ended, the Conservative Party announced new and radical proposals. The announcement stated:

“At the heart of the reform will be a new British Bill of Rights and Responsibilities that will restore common sense to the application of human rights in the UK. A draft of the Bill will be published for consultation before Christmas.

Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using human rights to prevent deportation. It will make it clear that people have clear responsibilities to society, and that there is a proper balance between rights and responsibilities in British law.

The Bill will remain faithful to the basic principles of human rights which the United Kingdom signed up to in the original European Human Rights Convention, but it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of society as a whole. …”

However:

a. “These proposals threaten to create domestic constitutional difficulties and to undermine our international reputation and influence for entirely illusory benefits.
“It ought to be obvious to the paper’s authors that such an outcome is impossible without destroying the Convention’s effectiveness. Why should a state subject to an adverse judgement comply with it if the UK can ignore its own? The proposal undermines entirely the principles that underpin international law. It represents a failure of ambition by the Conservative Party on the global promotion of human rights, and is contrary to the line we have previously maintained in government.”

b. “Travellers will be expected to obey planning laws and keep out of green belt land, even where no provision has been made for lawful sites for them and their families. ‘Foreign criminals’ will be unable to use rights to family life to avoid removal. Rights are not for criminals, particularly foreigners, villains, or other undeserving folk. At a stroke, the notion of universal human rights disappears. And the other thing that will disappear is judicial independence — the careful, case-by-case judicial balancing of personal rights against public interest considerations, a balancing process which lies at the heart of the Convention, but is in danger of being swept away by restrictive blanket rules.”

The Conservative proposals in summary:

For domestic law

• the repeal of the Human Rights Act;

• enactment instead of a ‘British Bill of Rights and Responsibilities’;

• the Bill will not include the requirement (currently in section 2 of the HRA) to have regard to decisions of the Strasbourg court;

• instead the Bill will require to the UK courts only to take account of the substantive text of the ECHR (not the jurisprudence of the ECtHR), so that Convention rights “are applied in accordance with the original intentions”;

• the Bill will set out some specific limitations and exemptions to the rights currently enjoyed under the Human Rights Act. In particular:

1- to limit the “use of rights to the most serious cases” (presumably right to life, torture, slavery, freedom from arbitrary detention, fair trial and freedom of expression but not privacy, protest or anti-discrimination),
2- to prevent rights applying to the “British Armed forces overseas”, terrorists and serious criminals “who pose a significant threat to the security and safety of UK citizens” would lose their right to stay in the UK, and

3- “no one will be able to claim human rights to step outside the law”, the example used here in the paper is of travelers using the right to a home to challenge planning decisions;

In relation to the European Court of Human Rights

• “Every judgement that UK law is incompatible with the Convention will be treated as advisory” and a new parliamentary procedure will be introduced to consider such judgments, which “will only be binding in law if Parliament agrees that it should be enacted as such”
• During the passage of the Bill the government will try to negotiate with the other member states in the Council of Europe “to seek recognition that our approach is a legitimate way of applying the Convention. In the event we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights.”

• In addition, the government would ensure that the current discussions over the accession of the European Union and its constituent bodies to the ECHR took account of and respected the UK’s new approach.

• In its proposed wider negotiations with the EU pending the “in or out” referendum, a new Conservative government would address anything in the relationship between the EU and the UK “which encroaches upon our new human rights framework”. This is, presumably, a reference to the EU’s Charter of Fundamental Rights and the extent of its jurisdiction and impact but would also pick up issues raised by the free movement principles of the EU treaties.

The proposals have been condemned as unworkable by many lawyers in the UK, human rights NGOs and others. The Council of Europe itself responded to the proposals by stating:

“We take note of these proposals by the Conservative Party. We also take note they are not draft legislation. As they stand, the proposals are not consistent with the ECHR.”
Commentators have made the following observations on these:

• They are based on some factual miss-statements of law: for example wrongly stating that the Strasbourg court has banned whole life sentences’ and suggesting that the Strasbourg court’s judgments are currently binding in national law;
• It is inaccurate to suggest that British courts are bound by interpretations of Convention rights by the Strasbourg courts: section 2 is only a duty to have regard to them, and indeed, section 3(2) prevents courts from interpreting law compatibly with Convention rights as interpreted by the ECtHR if legislation expressly requires this;

• The suggestion that the living instrument doctrine will be abolished – as a matter of domestic law – would have the odd and perverse effect that interpretation of the ECHR would be stuck in the 1950s when the Convention was drafted, so that situations which were not in contemplation at that time (such as legal recognition of same-sex relationships; or consideration of the legality of retaining DNA) could not be tested by reference to how the core values of the Convention apply to 21st century problems;

• The suggestion that protection of rights would be limited to ‘the most serious cases’ begs the question of who decides what are ‘the most serious cases’: it is implicit that the legislature would seek to bind the hands of the courts on what is regarded as sufficiently ‘serious’ to enjoy protection, in contrast to the present position whereby the courts decide whether infringement of a qualified right is proportionate in the circumstances, which include the extent of interference with the underlying right;

• The proposal to prevent rights applying to British Armed forces overseas would overturn the Smith judgment of the Supreme Court and the Al-Skeini judgment of the Grand Chamber of the ECtHR, so domestic law on the extent of the United Kingdom’s ‘jurisdiction’ would be at odds with the concept in international law. It would also mean that a victim of a breach of human rights abroad (whether a British soldier qua victim or victim of a British state agent) would have a direct remedy only in the ECtHR in Strasbourg;

• The suggestion that some criminals and suspected terrorists would lose their Article 2 and 3 rights in respect of removal to countries would again put domestic law on a collision course with well-established Strasbourg caselaw in cases like Soering v UK (1989) 11 EHRR 439 and Chahal v UK (1996) 3 EHRR 413. It also seems incompatible with the fundamental principle of equality before the law, and the absolute nature of the rights to life and freedom from torture. Irrespective of the position of the UK in relation to the ECHR it would be a breach of the European Convention for the Prevention of Torture, the UN Convention Against Torture and the ICCPR to allow a person to be sent out of the UK to another country if they are likely to be tortured in that other country. Therefore the idea that the proposals can create a situation where “those who pose a national security risk to this country or have entered it illegally cannot rely on questionable human rights claims to prevent their deportation” is highly questionable.

• If ‘no-one will be able to claim human rights to step outside the law’, there would be no mechanism in which a domestic court can test the compatibility of statutory provisions with human rights standards (in contrast to the present system where a court which considers that a statutory provision is incompatible with human rights standards can make a declaration to that effect). For example a law prohibiting gay sex (such as existed in Northern Ireland until the judgment in Dudgeon v UK (1981) 4 EHRR 149 would be unassailable in domestic law.

• A law which rendered Strasbourg judgments ‘advisory’ only would breach Article 46 ECHR, which requires signatory states – as a matter of international law – to abide by judgments against them. It is inconceivable that the Council of Europe could agree to this. If – as the Secretary of State for Justice suggests – Britain would then withdraw from the Council of Europe, it would be the only country in Europe not to be a member other than Belarus, and the only country ever to withdraw from a human rights instrument which it had signed apart from Venezuela, and North Korea.

• The suggestion that the government would “ensure” that the current discussions over the accession of the European Union and its constituent bodies to the ECHR took account of and respected the UK’s new approach could only mean a veto.

Following the election, and with a new Secretary of State for Justice, Michael Gove, the new government has promised a consultation document by the end of 2015. The criticisms of the October 2014 might therefore result in some slightly different proposals.

The Human Rights Act 1998 came into force fifteen years ago and the Act continues to have a profound effect on domestic law, substantially strengthening the legal protection afforded to human rights in the United Kingdom. Where citizens once had ‘negative’ liberties—no more than the residue of rights left over after the law had been obeyed—they now enjoy positive freedoms and the power to enforce them. The Human Rights Act has been used to hold the Government and public authorities to account in a multitude of contexts—preventing the indefinite detention of foreign terrorist suspects, broadening the ambit of procedural justice, recognizing the rights of transsexuals to marry someone of their original gender, protecting the right to freedom of speech, even when it offends, ensuring that the state does not retain the DNA records of innocent people. If it was ever a matter of doubt, it is now plain that the Human Rights Act can no longer be regarded as just another statute. Rather it places on an ever-speaking statutory basis an assumption that certain legal norms are fundamental and underpin all other statutory interpretation. Lord Justice Laws placed it in a category of ‘constitutional statutes’ which include the Magna Carta and the European Communities Act 1972, and the Government accepted its status as a ‘received part of our constitutional arrangements’. However the number of cases going to the Strasbourg Court has not yet been stemmed, and the decisions of appeal courts in the United Kingdom are often ‘overturned’ by the European Court of Human Rights:

“…there have been no fewer than 10 occasions on which the European Court of Human Rights has issued a judgment which is at variance with that which was earlier reached by the House of Lords.”
This can be seen as a positive mechanism of dialogue between national and international law norms, and a valuable part of the new constitutional settlement.

The Act, however, continues to be condemned by the popular press however as a ‘villains’ charter’ that privileges the rights of unpopular minorities (often the criticisms concern non-British citizens “taking advantage” of the Act) over the law-abiding majority, while the judiciary (both from the UK courts and the judges in Strasbourg) is damned for its usurpation of democratic power. These accusations are – at least when the details of the cases are analysed – unwarranted. Despite common misconceptions to the contrary, the Human Rights Act does not allow courts to strike down legislation that violates fundamental rights. Instead, the Act strikes a careful balance between parliamentary sovereignty and judicial oversight that enables the courts only to issue a declaration of incompatibility where a legislative provision is incapable of being read compatibly with Convention rights. Ministers (and Parliament) make the final decision as to whether or not to amend legislation which has been held incompatible with the Convention. Though it is under no legal obligation to do so, governments usually respond to declarations of incompatibility by changing legislation (albeit generally after an appeal and some delay). But they do not have to do so as a matter of national law: and indeed, in the celebrated impasse over prisoners’ voting rights, they have not done so.

Consequently, the Supreme Court has held that it would be inappropriate for it to make any further declaration of incompatibility on this subject: the legislature and executive now have the judicial view on this subject and its constitutional role is at an end . Rather than judicial usurpation, this model of rights protection ought to be characterized as healthy democratic dialogue, and it leaves in place the British dualist legal tradition, in which international legal obligations are applied in national courts only if and to the extent they are incorporated into national law by statute. The late Lord Bingham summed up the position in his powerful and eloquent speech in the Belmarsh case concerning detention of terrorist suspects:

I do not in particular accept the distinction between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.

The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues.

In any event, contrary to some press accusations, the application of the Human Rights Act by the judiciary has been cautious. The approach to section 2 of the Act, which demands that Strasbourg cases are ‘taken into account’ in interpreting Convention rights, illustrates the restraint with which the judiciary has approached its new powers. In an attempt to avoid being labelled judicial activists, the House of Lords and the Supreme Court have developed the ‘no more, no less’ approach to Strasbourg cases and arguably frustrated the creation of a progressive domestic rights jurisprudence on interpretation of Convention rights in the British context. It is necessary only to look at those decisions of the House of Lords and Supreme Court that have been re-considered by the Strasbourg Court to see that English courts regularly adopt a narrower interpretation of the Convention rights even than the long-stop Court in Strasbourg.

The Conservative Party went into the 2010 general election vowing to abolish the Human Rights Act and to substitute it with a ‘Bill of Rights’. The Coalition Government then set up a Commission to investigate the creation of a Bill of Rights that incorporates and builds on the European Convention. The Commission failed to reach a consensus on what, if anything, needed to change. However some members of the Commission expressed concern that the debate in the Commission was moving towards a discussion of removing rights, and particularly towards withdrawing from the ECHR.

Fury over the Human Rights Act reached fever pitch again as a result of the long-delayed legislation brought forward to give prisoners the right to vote in line with the decision of the European Court in Hirst v UK (No 2) in 2006. The media and many politicians denounced the Convention and called for the United Kingdom to remove itself from the jurisdiction of the European Court. The Government partly responded by using its chairmanship of the Council of Europe to push on with further reforms of the Court to ‘rebalance’ its relations with national courts. This resulted in the “Brighton Declaration” and in turn, two new protocols, the first of which, protocol 15, will impose (amongst other things) further restrictions on access to the Court and, might push the Court to be more “careful” in its judgments (see Chapter 9 for more details). Although the UK’s initial proposals for reform were watered down, pressure for reform has led to a wider ranging review of the long term future of the Court, the consequences of which are difficult to predict.

The judiciary has taken note of the political heat surrounding human rights law and recent domestic decisions from the Supreme Court and Court of Appeal suggest increasing judicial willingness to assert the power of the common law to resolve human rights claims. If the Human Rights Act is repealed, we can expect the courts to turn to other sources of protection for fundamental rights.

These extracts from a lecture by the recently sacked Attorney General, Dominic Grieve, best sums up the postion :

“Indeed looking carefully at the paper my Party has produced on changing our relationship to the ECHR, I am struck by the paucity of concrete examples of Strasbourg mission creep that are identified, to justify a case for change.”
“It is difficult to avoid the conclusion on reading the paper that the real problem for its authors is not so much the interpretation of the Convention by the Strasbourg Court or indeed our own domestic courts but the frustration that an international legal obligation prevents the UK government from being able to ignore judgments when it considers that they are adverse to its view of what is in the public interest.”

“Such a course may be strictly lawful, but its practical consequences are likely to be as devastating both for ourselves domestically as it will be for the future of the Convention.

Domestically, our non-compliance with the Convention calls into question the Devolution settlements for Wales, Scotland and Northern Ireland which enshrine Convention rights as governing all their actions. Parliament at Westminster could, of course, legislate to change the position, but there is evidence that this would be against the will of the devolved administrations.

In the case of Northern Ireland, it is also part of the Good Friday Agreement, an international treaty. At a time when the future of the United Kingdom is still in question and the peace settlement in Northern Ireland still fragile, it opens the prospect of a new area of political discord quite apart from the possibility of our courts having to operate different rights systems in one country.”

“That is why it is inconceivable that we can negotiate a special status for ourselves within it and why our departure as one of its principal creators and supporters will be so damaging to it. It is already the case that countries such as Russia are using the UK position to try to procrastinate on implementing judgments. Indeed the effect of our conduct will go further as the UK’s ambivalence is being cited by countries such as Venezuela in ignoring obligations under the American Convention on Human Rights arising prior to its denunciation of it in 2012 and citing Britain’s approach as a justification and by the president of Kenya over the jurisdiction of the ICC. It bodes ill for all whose lives have been or could be beneficially affected by the existence of the Convention and the work of the Strasbourg Court and by Human rights conventions generally. It flies in the face of all the good work done internationally by the UK government to promote human rights for so long. I have to say that as a Conservative this pains me. Whatever the challenges the Convention has posed and I accept that there are some proper grounds to criticise its operation, the failure of ambition represented in the Paper and the narrowness of its moral and political vision is very disappointing.”

Reform of the Human Rights Act has been under consideration almost since its inception. It was as far back as 2007 that former Prime Minister Gordon Brown published a Green Paper and a statement exploring the possibility of a British Bill of Rights as part of a wider programme of constitutional reform. The JCHR contributed to the debate by undertaking a formal inquiry into a Bill of Rights, which reported in August 2008. It found that the case for a Bill of Rights had been made out, but emphasized that the Bill could not be a vehicle for diluting the protections of the Human Rights Act; rather, it should add to those rights already protected.

In March 2009, the Labour Government formally launched the consultation process into a Bill of Rights in the publication by the Ministry of Justice of its long-awaited Green Paper, Rights and Responsibilities: Developing our Constitutional Framework. The Green Paper set out preliminary proposals for a ‘Bill of Rights and Responsibilities’, but the 2010 general election intervened before the consultation was completed. The Conservative Party went into the 2010 election with a commitment to repeal the HRA but the Liberal democrats wished to see it preserved. The founding document of the Coalition Government resolved this disagreement as follows:

“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”
The Commission that was established reported at the end of 2012 but there was, however, no consensus on what, if anything, needed to change. However there was concern by some members of the Commission that the debate in the Commission was moving away from the objectives set out in the Agreement towards a discussion of removing rights, and particularly towards withdrawing from the ECtHR.

Scotland, Wales and Northern Ireland

The extent of protection for human rights in Scotland, Wales and Northern Ireland is different from that in England because although the Human Rights Act applies in the same way as in England, the devolution legislation also requires additional compliance with the ECHR. So, for instance, in Scotland, the Scotland Act states that an Act of the Scottish Parliament

“is not law so far as any provision of the Act is outside the legislative competence of the Parliament [if] it is incompatible with any of the Convention rights or with EU law.”

There are similar restrictions on the assemblies and executive in Wales and in Northern Ireland. The repeal of the Human Rights Act itself would not change these provisions. If they remained in place then people in those jurisdictions would have different (more) rights in relation to the acts of the devolved administration (including most public services, including the police in Northern Ireland and Scotland) compared with non-devolved matters like immigration or defence. Where these provisions did not apply – in England – people would have no such rights regardless of the nature of the authority that violated them. Amendments to these devolution provisions require the consent of the relevant devolved Parliament or Assembly.

The situation in Northern Ireland is not only complicated by the law creating the devolution settlement (see above) but also because of the “Good Friday Agreement”. The settlement is an international treaty binding the UK and the Republic of Ireland and would require the consent of both to vary it, not least the political parties in Northern Ireland. The agreement states:

“The British government committed to incorporate the European Convention of Human Rights (ECHR) into the law of Northern Ireland and to the establishment of a Northern Ireland Human Rights Commission.”
The situation is more complicated because alongside this requirement was a requirement to develop a Bill of Rights for Northern Ireland, going beyond the provisions of the ECHR. The Northern Ireland Human Rights Commission consulted widely on a draft Bill and published their final draft in 2008 but there was no political consensus on their proposals and no progress has been made.

The Council of Europe

Article 58 of the ECHR allows a state party to denounce the Convention and withdraw from the jurisdiction of the Court on giving six months’ notice. For ongoing or existing cases a denunciation does not prevent the Court giving judgment or compensation being ordered.

Given the importance of the Convention for the Council of Europe (all its member states have ratified the Convention) the UK’s position as a continuing member would raise difficulties.

The Statute of the Council of Europe states:
Article 3
Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.
Article 7
Any member of the Council of Europe may withdraw by formally notifying the Secretary General of its intention to do so. Such with¬drawal shall take effect at the end of the financial year in which it is notified, if the notification is given during the first nine months of that financial year. If the notification is given in the last three months of the financial year, it shall take effect at the end of the next financial year.

Article 8
Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

No state has ever been expelled but Greece, during the time of the military junta, withdrew. Withdrawing from the ECHR itself does not necessarily mean that the UK would not be upholding the values set out in Article 3 of the above statute but the expectation of all members states since the readmission of Greece and the admission of Portugal and Spain has been that they would ratify the ECHR and sign up to the right of individual petition and the jurisdiction of the ECtHR. It might be now that accepting the jurisdiction of the ECtHR is now seen to be implicit in Article 3 but probable this is a political not legal question. The question might well be would the effect of expulsion deter other states from pursuing the same path.

Greece, following the installation of the Colonels’ military dictatorship in 1967, withdrew from the Council of Europe in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime. Turkey was suspended, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place. Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

At present the ECtHR system is subject to a fundamental and long term review and in November 2013 the Council of Europe initiated a further consultation exercise:

“…holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights. This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court.”

About the Author
John Wadham
John Wadham is a human rights expert and solicitor; previously leading INTERIGHTS (Executive Director), Equality and Human Rights Commission (General Counsel), Independent Police Complaints Commission (Deputy Chair) and Liberty (Legal Officer, Director of Law and CEO).

Associate of Doughty Street Chambers, member of the Human Rights Committee of the Law Society, Visiting Senior Research Fellow at Kings College, London; Visiting Lecturer at the University of Auckland and the University of Leicester. Co-author of Blackstone’s Guides on: the Human Rights Act; the Freedom of Information Act; and the Equality Act.

Currently independent consultant and expert for the Council of Europe and others.

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