A Bill of Rights for the UK: a good or bad idea?
Pleased to be talking at a Human Rights Implementation Centre event and very grateful to Professor Rachel Murray in arranging this. I am going to talk about the government’s plans to “repeal” the Human Rights Act and to replace it with a British Bill of Rights. I will make time for questions at the end.
- Introduction to the Human Rights Act
- Some criticisms and previous proposals for change
- The October 2014 proposals
- What is likely now
- Other sources of rights
The new Secretary of State for Justice, Michael Gove, is due to publish a consultation paper on exactly what that might mean for the UK (now not expected until next year).
What is being proposed and will it will enhance or degrade the rights we have in the UK?
- Introduction to the Human Rights Act
First a quick summary of the Human Rights Act. Primarily it brings the ECHR and the ECtHR into domestic law and provides for remedies in the UK courts and tribunals.
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
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. Governments usually respond by changing legislation. But they do not have to do so
The late Lord Bingham (one of our more thoughtful judges) summed up the position in his powerful and eloquent speech:
“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.
“[It] is wrong to stigmatise judicial decision-making as in some way undemocratic. “
By the way: Human rights are good thing: 80 to 90% think that but 40% think that human rights are exploited or abused by bad people.
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.
Amongst human rights advocates, there is a consensus that the Government ‘failed to explain the basic philosophy of the Human Rights Act to the people’. As the Equality and Human Rights Commission found in its Human Rights Inquiry, there is a general lack of public awareness of the positive role that human rights can play in individual lives.
- Some criticisms and previous proposals for change
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 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.
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.
- The October 2014 proposals
In October 2014, the day after their annual conference ended last year, the Conservative Party announced new and radical proposals.
“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.
The Conservative proposals in more detail:
- the repeal of the Human Rights Act;
- the Bill of Rights will set out some specific limitations and exemptions to the rights currently enjoyed under the Human Rights Act. In particular:
- 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),
- to prevent rights applying to the “British Armed forces overseas
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”
Dominic Grieve said
“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.”
The proposals have been condemned as unworkable by many lawyers in the UK, human rights charities and many others – including of course by the old and new leadership of the Labour Party. 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);
- 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’:
- The proposal to prevent rights applying to British Armed forces overseas
- The suggestion that some criminals and suspected terrorists would lose their Article 2 and 3 rights in respect of removal to countries 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.
- 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.
- If – as the previous Conservative 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.
However perhaps some new rights:
- Jury trial
- Freedom of expression
- What is likely now
Times briefing for lawyers, last week on 2nd December
“The right to family life will be drastically curbed to stop foreign criminals and terrorists using it as a ploy to avoid deportation under a shake-up of human rights laws expected before Christmas.
Presumably a reference to the right to family life (art 8) which belongs also to the partner and children. Cases will still go to ECtHR, what happens when the Court finds a violation. Law needs to be changed but Parliament refuses – triggers new dispute and threats of withdrawal.
Judges will be urged (?) to give greater priority to public safety than to allowing criminals to remain with their families under a new UK Bill of Rights, The Times has learnt.
But in a radical shift of Conservative government policy, it is understood that the proposed legislation will maintain all key provisions of the European Convention on Human Rights and not suggest withdrawal from it as a last resort.
Two stages, consider Cameron’s position if after all these changes he then has to confront the ECtHR again – Daily Mail will not let this go.
Key changes will include enshrining in statute the sovereignty of parliament to legislate as a fundamental democratic protection against the European Court of Human Rights in Strasbourg. Where there is a clash, such as when the Strasbourg court ruled against the UK on prisoner votes, the UK will hold its ground.
Not sure what this means, HRA does not allow override and statute changes require a Bill to be passed in Parliament (section 10 and fast track power?)
Possibility of a constitutional court have power to decide that judgment of ECtHR or ECJ does not need to be complied with (like the German Constitutional Court). Maybe a role for an enhanced Supeme Court.
The bill will also say that the UK Supreme Court is supreme and judges are not bound by rulings of the Strasbourg court – a view that many senior judges have already started to adopt.
Could make clearer in HRA but no real difference
- Other sources of rights
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.
EU Charter of Rights
The law of the European Union itself protects both equality and human rights, particularly the right to be free from discrimination and the right of EU citizens to move freely with the EU. Even in the absence of the HRA, controversial issues such as the deportation of a citizen of another EU state who has committed a crime in the UK but has family or other ties here will remain. EU law has a significantly higher status in UK law than the ECHR and the European Communities Act 1972 ensures that that European law must be given preference over UK domestic law if there is a clash.
The UK Parliament could repeal that whole provision or could enact a particular law in defiance of a decision of the UK courts applying EU law but compliance action by the EU Commission would be likely as would an unfavourable judgment from the Court of Justice of the European Communities. How such a strategy would play out given the wider issues of the proposed renegotiation and the promise of an in/out referendum by the Conservative Party is difficult to predict.
The Charter of Fundamental Rights became a more significant part of EU law as a result of the Lisbon Treaty and the rights contained include all of those in the ECHR as well as several other important rights. To the extent that a person’s rights in the UK engage EU law then the Charter rights also come into play but not otherwise. EU jurisdiction is likely to be engaged on issues of free movement, benefits in the UK for EU citizens, EU directive on anti-discrimination and many other similar issues. Unless and until there are changes to the EU treaties or the UK negotiates a special position for itself within those treaties, rights very similar to those in the ECHR on remain in force, at least partially.
The EU intends to accede to the ECHR itself in due course making the EU institutions subject to the ECHR and to the Court’s jurisdiction and as a result individuals will be able to take cases to the Strasbourg Court if those institutions have violated the rights in the ECHR and Article 4(1) of the Draft Agreement for accession provides for the EU to be “co-respondent” in cases before the ECtHR in which a member state is alleged to have breached the Convention in implementing EU law. The UK will obviously have a say in this accession process and has a right of veto over it.
Family life of EU citizens resident in UK subject to deportation as a result of a criminal offence
Data protection and privacy issues
The UK government has ratified and is bound by as a matter of international law several other human rights treaties which include very similar rights to those contained in the ECHR. These include, for instance, the United Nations’ International Covenant on Civil and Political Rights and the Convention against Torture. The UK has not ratified the special procedures for these treaties which would allow individuals to make complaints and to obtain opinions on the violations of the treaties by the relevant UN committee. However UK compliance with the treaties is assessed in two ways. First, the UK has a “periodic reporting duty” and every five years or so will have to submit a detailed written report to the relevant UN committee on its record and will be examined by experts in a public hearing who will subsequently publish their “concluding observations” on the UK’s compliance record.
Secondly, the UN’s “Universal Periodic Review” process assesses the UK’s record in relation to all of the UN’s treaties once every four and a half years. The UK has to produce a written (twenty page) report on how it assesses its compliance with these treaties, the UN High Commissioner on Human Rights draws up a summary of the issues and summarises any responses and reports by NGOs. The UK then has to submit to a three hour examination by the 47 or so members of the UN Human Rights Council.
The UK has ratified the individual complaints procedure to two UN treaties – the Convention for the Elimination of All forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of People with Disabilities (CRPD). These mechanisms have been rarely used.
The Optional Protocol to the Convention Against Torture (ratified by the UK) requires a systematic national institutional inspection and protection regime to ensure protection from torture and inhuman and degrading treatment and punishment. The system in the UK is based on a number of pre-existing institutions like the Prisons Inspector taking on this role.
The Council of Europe also has other human rights treaties, including the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (ratified by the UK). This convention created a committee which regularly inspects places of detention and then produces a written report on overall compliance of each member state.
Apart from the mechanisms described above such treaties are sometimes taking into account by the UK courts in making decisions even though they are not incorporated into domestic law and very occasionally they can be basis of a challenge to government policies.
Obviously if the UK did not withdraw from these provisions it would be in breach of them if, say, if deported people to country that were likely to torture them.
The Common Law
If the HRA was repealed but not replaced the courts would still be able to consider the provisions of the Convention in cases and the ECHR could still have a (weakened) role in protecting human rights.
“Prior to the entry into force of the HRA, domestic courts developed a common law doctrine of constitutional rights. Such rights ultimately had (and still have) to yield in the favour of clearly-incompatible Acts of Parliament, but would otherwise shape (in sometimes startling ways) the interpretation of legislation and thereby act as constraints upon the executive. That doctrine has not gone away. It remains part of domestic law, albeit that the HRA has, for the last several years, largely overshadowed it and reduced the need to rely upon it. Repealing the HRA would not, therefore, yield a wholly blank page: the common law’s recognition of fundamental rights would remain.
Nor should it be assumed that repeal of the HRA would bring to the fore a version of the common-law constitutional-rights doctrine exactly the same as that which was centre-stage pre-HRA. The relationship between the HRA and the common law has been (and, for now, remains) a two-way one. In particular, the common law has absorbed both rights (e.g. privacy) and techniques (e.g. privacy) from the HRA and the ECHR. Repealing the HRA would not therefore guarantee the removal from domestic law of the rights and techniques to which it has given prominence in recent years. It is far more likely that we would be left with a common law of human rights that turned out to have evolved considerably under the HRA’s influence.
Of course, if Parliament is sovereign, then it could in theory choose not only to repeal the HRA but to direct courts as to how (or even whether) they could rely upon the common law in order to protect human rights. But such a legislative injunction is as unlikely as it would be unwise, since it would set courts and politicians on a collision course whose outcome would be unpredictable but almost certainly messy.”
However Professor Conor Gearty has recently criticised the extent that the common law can protect rights in the UK.
“Common law myths?
Gearty criticised the myth that human rights had their origin in the ‘common law’. He also doubted what he termed ‘the myth of Whiggish inevitability’, according to which ‘everything is going to be fine because of a trajectory that tends towards perfection’.
The common law is a centuries-old system that allows judges in common law countries, such as the UK and Australia, to create ‘judge-made law’ in addition to laws made by Parliament. Disagreeing with a speech by Lord Neuberger, the current President of the UK Supreme Court, Gearty reminded his audience that common law judges had historically opposed trade unions and racial and sexual equality.”
The most important pre-Act uses of the Convention were as follows:
(a) as an aid to the construction of legislation in cases of ambiguity, for example in R v Secretary of State for the Home Department, ex p Brind. There is a presumption that Parliament does not intend to act in breach of international law (and the specific treaty obligations the UK Government has committed to on behalf of the Crown), so where there is ambiguity in a statute the courts will construe the law consistently with these international treaty obligations;
(b) to establish the scope of the common law where it is developing and uncertain, or where it is certain but incomplete. For example, in Derbyshire County Council v Times Newspapers Ltd Article 10 informed the House of Lords’ decision that a local authority could not bring an action for libel as it would offend against the freedom of expression protections in the Convention;
(c) to inform the exercise of judicial (as opposed to administrative) discretion. For example, in R v Khan the House of Lords held that a trial judge may have regard to the Convention as a material consideration in exercising the discretion conferred by section 78 of the Police and Criminal Evidence Act 1984 as to whether to exclude evidence; and
(d) to inform decisions on EU law taken by the domestic courts. For example, in Johnston v Chief Constable of the Royal Ulster Constabulary the European Court of Justice (ECJ) took Articles 6 and 13 into account in determining that the applicant did not have an effective remedy in her sex discrimination case. The ECJ has declared that the general principles of EU law include the protection of fundamental rights. This means that not only should English judges have regard to the Convention when dealing with questions of fundamental rights in EU law, but also that ECJ judgments involving fundamental rights are to be regarded as authoritative when domestic courts grapple with questions of EU law.
These techniques continue to be important, and are still used in relation to other international treaties that have not been incorporated into English law. Furthermore, since the Human Rights Act came into force judges have made decisions on the basis of the common law rather than on the basis of the ECHR, even though using the ECHR might have led to the same result. In practice the ECHR has encouraged the courts to adopt certain principles protecting rights but the removal of the HRA will not lead to these important cases being overturned.
 Much material extracted from Chapter 1, The Blackstone’s Guide to the Human Rights Act, OUP, 2015
 JCHR, A Bill of Rights for the UK? 29th Report (2007–2008), HL 165-I, HC 150-I, vol II, Klug Ev 1.
 The Governance of Britain (Cm 7170, 2007).
 Prime Minister’s statement on constitutional reform, HC, col 819 (3 July 2007).
 JCHR, A Bill of Rights for the UK? 29th Report (2007–2008), HL 165-I, HC 150-I.
 Cm 7577, 2009.
 The Commission on a Bill of Rights’ report – A UK Bill of Rights? – The Choice Before Us, 18 December 2012, Ministry of Justice.
 (2006) 42 EHRR 41.
 High Level Conference on the Future of the European Court of Human Right: Brighton Declaration, 20th April 2012, Council of Europe.
 Section 50, section 57 adds a similar restrictions to the acts of the executive.
 See Professor Aileen McHarg, “Will devolution scupper Conservative plans for a “British” Bill of Rights”, UKhumanrightsblog, 2nd October 2014.
 The “Sewell convention” provides that the Westminster Parliament may not legislate for devolved matters without the consent of the devolved legislature affected. In practice the process of consultation will be with the devolved administration and is also required for any constitutional changes that increase or reduce the devolved executive or legislative powers. However this is “only” a convention and the Westminster Parliament could ignore it. See www.devolutionmatters.wordpress.com or www.gov.uk/government/policies/maintaining-and-strengthening-the-scottish-devolution-settlement. However the Smith Commission’s Report, which sets out the details of the proposals to be implemented by the Westminster Parliament following the no vote (published 27th November 2014) recommended that this convention is put on a statutory footing.
 See “The Charter of Fundamental Rights and Freedoms”, Hugh Southey QC, The Public Law Project, 20th October 2014.
 The EHRC used judicial review to challenge the guidance given to the intelligence service when dealing with other law enforcement agencies that might use torture and based its arguments on the UN Convention Against Torture.
 “Repealing the Human Rights Act: What might lie ahead.”, Mark Elliot, 30th September 2013, Publiclawforeveryone.com. See also “UK Constitutionalism on the march.” See also Lady Hale (Deputy President of the UK Supreme Court), lecture to the Constitutional and Administrative Law Bar Association Conference, 12th July 2014.
 Corbishley Lecture at the London School of Economics, November 2014.
  1 AC 696.
  QB 770.
  3 WLR 162.
  QB 129.
 Extract from the Blackstone’s Guide to the Human Rights Act, OUP, 2015.
 See “Common law rights”, Michael Fordham QC, Blackstone Chambers, paper for the Public Law Project Judicial Review Conference, 18th October 2010. See also “If the Human Rights Act were repealed, could the common law fill the void?”, Professor Brice Dickson, Oxford Human Rights Hub, 27th November 2013 and “The Constitutional Significance of Statutory Repeal: How far can Parliament Turn the Clock Back?”, Scott Stephenson, UK Constitutional Law Blog, 7th March 2013.