Merris Amos

28 July 2015

As school holidays commence and Parliament breaks for its summer recess, all has been fairly quiet on the Human Rights Act (HRA) front. Even The Daily Mail and The Daily Telegraph have ceased their assault on the HRA and the European Court of Human Rights (ECtHR). Rumours continue to circulate, in particular that senior Government figures are concerned that too much of an attack on “European” human rights law at this point will muddle voters in the run up to the referendum on membership of the European Union (EU). As most teaching undergraduate law will know, it is very simple to confuse the Council of Europe with the European Union. An attack on the human rights remit of one could easily be mistaken for an attack on the human rights remit of the other. Telling us to vote “yes” whilst rubbishing the “European” Court of Human Rights on a daily basis could obviously go very wrong for those in favour of the UK remaining in the EU.

Despite this danger, it was reported in The Financial Times on Saturday 25 July 2015 that Prime Minister David Cameron wants to push through the abolition of the HRA next year, ahead of the referendum, “in the hope that asserting the power of domestic courts over Strasbourg will boost the yes camp.” Government figures have reportedly said that “the consultation on repatriating human rights and reining in Strasbourg judges should give Eurosceptic MPs some read meat in lieu of more details on the progress of Mr Cameron’s EU renegotiation package.” Whilst making the HRA and the UK’s membership of the ECHR system the sacrificial “European” lambs was to be expected, as noted above, a virulent campaign against a European court and European law run from May 2016, for more than a year, possibly longer assuming the House of Lords does not pass the Bill, is complete madness if Cameron, and the pro-EU camp, are really serious about their “yes” campaign.

The commitment to the EU referendum is now set in stone but the timing of the abolition of the HRA and its replacement with the British Bill of Rights is not certain. We know at this point that there will be a period of consultation, with the consultation document released in the Autumn, but it is not clear if this will contain a draft Bill of Rights. Although it was reported in The Financial Times that the objective is to introduce the legislation in the early weeks of the next parliamentary session, which starts in May 2016, this seems unlikely but, as always, it is important to be prepared. In recent weeks, the future of the HRA has been debated in both the House of Commons and the House of Lords and Michael Gove, the Lord Chancellor, has answered questions before the Justice Select Committee. The purpose of this essay is to summarise where we are up to on the British Bill of Rights, and to highlight the arguments that will be made by the Conservatives, and which must be rebutted, once the consultation process starts.

Human rights were protected before the Human Rights Act
A prominent feature of the attack by Conservative ministers on the HRA has been the notion that human rights were adequately protected by law before the HRA came into force and will remain so without the HRA, and even without a new Bill of Rights as the common law, and “traditional British liberties” will provide. In the House of Lords, Minister for Civil Justice Lord Faulks noted that the capacity of the courts and Parliament to protect human rights should not be underestimated.

Such an assumption is completely ridiculous. Whilst utilisation of the common law prior to the HRA did make some moderate gains, particularly in relation to the right to freedom of expression, its inadequacies as a tool to address seriously wrongs were frequently exposed by the judgments of the European Court of Human Rights. In 2002, when the impact of the HRA on UK law had not filtered through to applications considered by the ECtHR, there were 40 judgments concerning the UK and violations of the ECHR found in 30 of these judgments. Post the impact of the HRA, in 2014, there were 14 judgments concerning the UK and violations found in only four of these. There are numerous examples of the failure of the common law, including the ban on homosexuality in the armed forces and the anti-terror broadcasting ban. Prior to the HRA numerous books were written about it including Klug, Starmer and Weir The Three Pillars of Liberty: Political Rights and Freedoms in the United Kingdom. It is also difficult to imagine how British judges will utilise the common law in this creative fashion given the message from government, and possibly Parliament, will be to “pull your heads in”. It would be a brave judge indeed who decided to recreate the guarantees of the HRA by refashioning the common law, just has the HRA has been repealed.

We don't really know if we will leave the ECHR system - or not
In the House of Commons, Minister for Human Rights Dominic Raab stated that current plans “do not involve us leaving the Convention” as this was not the objective. However, in the same breath he stated that were it not possible to restore some common sense “to our human rights, which are out of kilter” nothing had been “taken off the table”. So we will be leaving the ECHR system if the British way of doing things cannot be negotiated? Before the Justice Committee Gove was not able to give a one-hundred percent guarantee of our continued membership. But in the House of Lords, Lord Faulks stated that it was not “part of our plans to leave the convention”. As Labour’s Jeremy Corbyn MP pointed out, there is confusion (and disagreement) at the heart of government on this very important question. Taking the worst case scenario, should the Council of Europe not agree to a special “British” version of human rights, where the rights of unpopular groups, such as foreign nationals and prisoners are limited, the UK will leave the ECHR system. Despite the dissembling on the question, it is safest to assume that a UK exit from the ECHR will be very much on the table.
"Rights inflation" must be addressed
Clearly utilising his own personal manifesto, as set out in his 2009 book The Assault on Liberty, where, according to John Kampfner, he has portrayed Europe as “the fount of evil”, Dominic Raab in the House of Commons, centred his case against the HRA and ECtHR on the problem of “rights inflation”. In his view, the HRA has shifted away from negative liberty towards imposing obligations on the state rather than constraining it. With a note of disgust, he stated “the textbooks . . are littered with examples” but he was not able to give any apart from a bizarre reference to the unsuccessful human rights argument made in the Supreme Court in the case of Reilly [2013] UKSC 68 concerning the work for benefit scheme. As the author of a textbook in the field, whilst I have “littered” the pages with a variety of other judgments Reilly was not a big feature. I will send a copy to Raab, and I hope that he reads it.

Still no clearer on what rights inflation actually is, in his House of Commons speech Raab noted that this phenomena “dilutes personal responsibility” and leads to legal uncertainty. Those held responsible for rights inflation are not just the ECtHR. Raab promises to “deal with our home-grown problems too” – a warning to all British judges, just in case they are getting ideas about using the common law to supplement the new limits on human rights protection contained in the British Bill of Rights. By contrast, before the Justice Committee Michael Gove preferred “abuse of human rights” as a justification for the British Bill of Rights but was similarly unable to give any examples, or explain any further. In the House of Lords, Lord Faulks spoke of the need to prevent the abuse of human rights and to “restore some common sense to the system” without giving any examples although later referred to Abu Qatada and prisoner voting. He also quoted from the Prime Minister’s speech at Runnymede where, utilising an important State occasion, he informed the Queen and other guests that “the good name of human rights has sometimes become distorted and devalued.”

The response
The good news is that in the House of Commons and House of Lords there is considerable support from all political parties for the HRA and the UK’s continued membership of the ECHR system of protection. Liberal Democrat Alistair Carmichael MP rightly stated that the HRA is “inevitably going to be unpopular in government, because it stops Ministers doing what they might otherwise wish to do”. Conservative Dominic Grieve MP spoke of the huge benefits conferred on the UK by the HRA. Many were also concerned at the damage to the reputation of the UK in the world which would result from leaving the ECHR. Labour’s Jeremy Corbyn MP stated that by our membership of the ECHR meant “we support a basic level of human rights for people across Europe.” Labour’s Andy Slaughter MP asked “why are we seeking to retreat from, rather than to advance the cause of international law?”

Most sensibly of all, Conservative, Sir Edward Garnier MP spoke of the political reality that there was no majority in the House of Commons, or House of Lords, for repeal of the HRA or removal from the ECHR. In his view, there were all sorts of sensible things Parliament could be talking about “we do not need to waste the next four and a half years of this Parliament banging our heads against an impenetrable brick wall to no effect”. Similarly, the SNP’s Angela Crawley MP noted that it speaks volumes about the Government’s priorities “that they would rather unravel the substantial and important progress that has been made than protect and enhance people’s rights.”

In September the consultation process on the British Bill of Rights is likely to commence, but we are unlikely to be provided with a draft Bill. The core arguments against the HRA and the ECtHR will be that “rights inflation”, as a result of the interpretation of human rights law by both national and supranational courts is out of control and must be brought into check. If necessary, in order to control these unruly judges, the UK will leave the ECHR system. But British people shouldn’t panic as before the HRA, even before our membership of the ECHR, human rights were protected by Parliament and the common law. The most effective responses to the consultation will do three things. First, illustrate that the common law and Parliament cannot provide protection for human rights as effective as that provided by the HRA and the ECtHR. Second, question the notion of “rights inflation” by seeking examples and explaining, through example, that in the vast majority of national and ECtHR human rights judgments, the principles of justice, and morality, are served. Finally, the benefits of our membership, both past and future, of the ECHR system must also be illustrated by example. Just to assume that the ECtHR has been an important force for change and modernisation in this country is not enough and the assumption must be backed up by example. It is crucial to prove to everyone that we will all most certainly be much worse off in our day to day lives without international oversight and without progression, rather than regression, in the protection of human rights through law.