Plans to scrap the Human Rights Act (HRA) in just 100 days, replacing it with a British Bill of Rights and Responsibilities, have been sparking intense debate since the Conservatives came into power. In the new government’s first Queen’s Speech this week, growing opposition to the plans appears to have been acknowledged and this ambitious timetable has been delayed whilst a consultation takes place. Nevertheless the Government has indicated that it remains set on delivering its manifesto pledge.
When first mooted in October 2014, the Conservatives’ plans were criticised for containing several legal ‘howlers’ by former Attorney General Dominic Grieve. As yet we have little detail on what will replace the HRA, as the plan to publish a draft Bill prior to the election was shelved.
Much recent commentary has focused on the potential political obstacles to getting the changes through Parliament and the impact of opposition to the proposals in Scotland and Northern Ireland.
There has been less focus on the pledge, to “break to formal link between the British Courts and the European Court of Human Rights” and little detail on how this will be achieved. One part of the proposal is to clarify that UK courts are not obliged to follow Strasbourg jurisprudence. Section 2 HRA already provides that domestic courts only need to take it into account, however the October 2014 policy paper goes further, proposing that the UK should only be bound by Strasbourg rulings against the UK if Parliament votes to accept the ruling. This has consequences far beyond UK domestic law.
As a signatory to the European Convention on Human Rights (ECHR), ratified in 1951, the UK is bound by it in international law. Article 46(1) ECHR provides:
‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties’
The proposal for Strasbourg judgments to be binding only when voted through by Parliament is a clear breach of the Convention. This proposal would not, as the manifesto implies, make the UK Supreme Court the ultimate domestic arbiter of human rights matters, but Parliament, raising concerns about increased state interference with the law. The Defendant in all human rights cases is the state, and it is bound to be dissatisfied with some judgments. A great deal of political capital has been made by misrepresenting Strasbourg judgments such as the prisoner voting case, undermining the reputation of the Strasbourg court. If the government proceeds with its proposal to vote on judgments against the UK as a response to one or two unpopular judgments, it puts at risk the rule of law across the Convention system.
Looking at the practicalities of the government’s plans it is unlikely that they will have an easy ride. Their October 2014 policy paper suggests the intention is to try and secure recognition from the Council of Europe that the proposal is a legitimate way of implementing the Convention. In effect it requires the Council of Europe to agree an opt-out from the Court’s jurisdiction. The UK is a signatory to Protocol 11 of the Convention, which established the Court in its present form. By signing the Protocol and agreeing to be bound by the Court, there is limited scope to argue that a state can stay a contracting party to the ECHR without submitting to the Court’s jurisdiction.
The government may not intend to pull out of the Convention but they will struggle to formulate a law which marks both a commitment to the ECHR and yet simultaneously frees Britain from certain Convention commitments. The government has indicated that the as-yet unpublished Bill of Rights will include the text of the Convention. However, it also proposes to ‘clarify the Convention rights, to reflect a proper balance between rights and responsibilities’. Human rights arguments will be limited to the ‘most serious cases’, and some people will be prevented from claiming ‘qualified rights’ if they are deemed not to have fulfilled ‘their responsibilities in society’. The scope of rights protection under the Bill will therefore clearly be narrower than that afforded under the ECHR. Such a bill would not represent full commitment to the Convention principles, in particular the principle of universality of human rights.
Britain’s attempts to negotiate an opt-out from the Court whilst remaining a signatory to the ECHR may be unacceptable to the Council of Europe. It would make the entire regime toothless by setting a precedent across its 47 member states that each can pick and choose the judgments to abide by. There are already indications that other countries could press for similar concessions if the UK proposals are accepted. Russia, for example, proposed domestic legislation to try to avoid changing laws found to be incompatible with the ECHR. To date it has not proposed to withdraw from the ECHR or reject Strasbourg’s judgments, but it could seek to do so if the UK sets a precedent.
If Britain simply proceeded with its plans without securing an opt-out, it would be in breach of international law. This is likely to negatively affect the UK’s international reputation. Continued non-compliance with judgments of the court can result in expulsion from the Council of Europe. That sanction has not been applied to any member states to date, although some countries have had their membership suspended due to serious violations. In seeking to minimise remedies for human rights breaches, the UK will place itself amongst the worse human rights offenders in the region. If Britain did not wish to breach its international obligations or face expulsion, it could withdraw from the Convention six months after giving the required notice under Article 58 ECHR, although this would have no effect on ongoing or existing cases (such as prisoner votes).
Withdrawal from the Convention would bring its own complications. On the domestic scene, the devolution settlements require those administrations to abide by Convention rights, whilst the Good Friday agreement requires the UK government to incorporate the ECHR into Northern Ireland law. Withdrawal from the Convention could cause irreparable fractures at a time the future of the Union is uncertain.
Britain’s continued membership of the EU (the Government’s desired outcome of the referendum) could also be affected. It is a pre-requisite of joining the EU to be a signatory to the ECHR so it is far from clear that Britain would be permitted to remain a member if it no longer satisfied this criteria. Even if it could, the EU’s accession to the ECHR and the application of the EU Charter (which largely reflects the Convention rights) would mean that those rights would still apply in the UK in certain scenarios, for example in the implementation of EU directives, or where EU nationals are exercising EU derived rights such as freedom of movement in the UK. As it is likely the Bill of Rights will offer less extensive protection in domestic law, we would in effect have different tiers of rights in separate spheres of law.
As yet there is little detail in the government’s plans but the effects of the mooted proposals would be felt far and wide. The weakening of human rights protection across the continent and the fracturing of relationships with Europe and between the home nations are heavy prices to pay for reforms of such questionable benefit.
Trudy Morgan, solicitor and Jocelyn Cockburn, partner and joint head of civil liberties at Hodge Jones & Allen.
This is a version of an article that first appeared in Solicitors Journal.