Posted on 6th January 2015
As this is the first blog of a new year, it is a chance to pull together some of the threads from last year and see what they might tell us about the year to come.
2014 saw some crucial Civil Liberties decisions in different courts, not least the DSD and NVB case, in which the High Court held that two women assaulted by notorious taxi driver John Worboys could claim compensation from the Metropolitan Police. An appeal is due to be heard by the Court of Appeal in May, and this blog will be reviewing the case in more detail next week.
However, the biggest civil liberties issue in 2014 did not relate to a specific case, but was the much more fundamental question of how we protect human rights generally – a debate which has been gathering heat for some time, but which caught fire in 2014. Looking ahead, it is also due to be a central part of the election in May, as the gulf widens between the main political parties on the question of rights. Labour (as well as the Lib Dems and Greens) have been vocal in their support of the current system of civil liberties protections, whilst the Conservatives (and UKIP) are on the other side of the key questions: Should we keep the Human Rights Act? Does the European Court of Human Rights have too much power? Is the protection of rights undermining our democracy as courts can interfere with the will of Parliament as never before?
The Conservatives certainly think so. In October 2014 they set out proposals to change the 1998 Act settlement. There has been a great deal of criticism of those proposals, including from within the Tory party – the previous Conservative Attorney General, Dominic Grieve QC, described the plans as “almost puerile” and “unworkable” in an interview with the Guardian on 3 October.
If they were to win the election in May (or were to be the biggest party, perhaps in coalition with UKIP), the plan would be to repeal the Human Rights Act 1998 and, perhaps most importantly, to reduce the role of the Strasbourg Court. Some of their proposals don’t make legal sense (and see the excellent analysis by Dr Mark Elliot of Cambridge University for more discussion of this) but what is particularly striking about them is how far the Conservative party has moved on this question in the past few years.
In 2012, the UK had the chair of the Council of Europe (the body responsible for the European Convention on Human Rights and the Strasbourg Court), and David Cameron gave a speech in which he set out his commitment to defending human rights. In that speech he said no-one should doubt “the British understanding that the Council of Europe, the Convention and the Court have played a vital role in upholding those rights.” He went on to state that this didn’t mean that the system did not need changing, but reiterated later on that “It is of course correct that the Court should hold governments to account when they fail to protect human rights. In these instances it is right for the Court to intervene.”
His key concerns were threefold – that too many cases were going to Strasbourg resulting in a big backlog; that too many spurious cases were going to Strasbourg; and that there was not enough account being taken by Strasbourg of democratic decisions by national Parliaments (the so-called ‘margin of appreciation’). To correct these problems, he proposed an amendment to the original treaty – the Convention – and this amendment was published as Protocol 15 in June 2013.
Protocol 15 states that primary responsibility for protecting rights falls on member states (known as ‘subsidiarity’), and there should be space for differences between countries and their approach to protecting rights (the ‘margin of appreciation’ – it would be explicitly included in the text of the treaty whereas before it was a rule of interpretation by the Court). There would also be a general tightening of who could apply to the Court, including a reduction in the time limit for appeal from 6 months to 4 months.
Amendments to treaties can take a long time, and so far only 10 (of 47) states have finally agreed to the amendment. The UK is in the process of adopting the amendment to the Convention, and as part of that process, in December 2014, the Parliamentary Joint Committee on Human Rights (JCHR) reported on the proposals. The JCHR recommended that the Protocol be adopted – noting with particular pleasure that human rights protections should start with Parliaments considering laws properly so that abuses of civil liberties do not arise in the first place.
The JCHR also noted that the trend in the Strasbourg Court is towards allowing more scope for national differences, and so less interference with the way in which individual states choose to protect rights. However, the JCHR was less keen on the proposals to make it more difficult to apply to the Court, amendments which were put forward by the Court itself. The JCHR suggested that the Court was under considerable political pressure to reduce the backlog of cases, and expressed concern about how this backlog was being dealt with (an issue which the JCHR will return to in a future report sometime in 2015).
Most importantly, the JCHR called for a debate in both Houses of Parliament about the proposals. They want an informed debate about the proposals, in particular discussing the increased emphasis on the margin of appreciation and on national sovereignty. The wider aim is to promote a better informed public debate about these issues.
And in that spirit, a summary of the proposals is useful – they would give greater power to the UK to decide how to strike a balance between rights, they would reduce the role of the Strasbourg Court (something which is happening anyway) and they would reduce the number of appeals to Strasbourg. As the JCHR noted, there is a risk that this means that some people who have genuine claims will be unable to enforce them, and there will be a lack of access to justice. But if implemented, they would answer most of the Tory concerns, and even without implementation, the Court is moving towards the Conservative position – hearing fewer cases and giving more scope to individual states. Such moves must prompt the question of whether the most recent proposals are really necessary, or if they are simply ill-thought through plans made in response to inaccurate and ill-informed criticism of our fundamental civil liberties.
Looking in the crystal ball, it would be nice to see some of this forming part of a reasoned and coherent debate in the general election in May, but instead (unfortunately) the crystal ball is showing more invective and hyperbole coming our way over the next 12 months.
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