11 May 2015

The worst nightmare for supporters of human rights protection through law has come true. The new Conservative government has pledged that scrapping the Human Rights Act 1998 will be included in the Queen's Speech on 27 May 2015, and that Michael Gove, the new Lord Chancellor, will unveil the Bill within the next 100 days.

The prospect that the HRA may be "scrapped" is old news – something the Conservatives have promised since June 2006. Labour also promised to replace the HRA with a UK Bill of Rights prior to the last general election. What is new is the details of the British Bill of Rights and Responsibilities which it is proposed will replace it. The Conservative Party Manifesto is fairly quiet on these details. They want to “restore common sense to the application of human rights in the UK” whilst remaining “faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights (ECHR).” The only two rights explicitly mentioned for inclusion are fair trial and the right to life. There is an indication that rights will be limited for some groups such as foreign nationals appealing against deportation decisions. It is also promised that the “formal” link between British courts and the European Court of Human Rights (ECtHR) will be broken but no further detail is given.

Reading the manifesto, the electorate may have been deceived into thinking this all fairly innocuous stuff. It is not. When coupled with the further details given in October 2014, in Protecting Human Rights in the UK, a proposal document from the Conservative Party not obviously available from their website, matters take a very sinister turn. Constitutional change in the UK is not difficult. With the issue already on the new Government's agenda, the HRA could be repealed and replaced with a Bill of Rights giving effect to these proposals in a very short space of time. It is important to be ready and to know what form the proposed Bill of Rights is likely to take.

Protecting Human Rights in the UK, October 2014
In Protecting Human Rights in the UK, the Conservative Party affirms its commitment to protecting fundamental human rights through law. This is stated to be a “hallmark of democratic society” and “central to the values of the Conservative Party.” Whilst there is a desire to alter the present way human rights are protected by law in the UK by repealing the HRA and replacing it with a British Bill of Rights and Responsibilities, there is not the desire to reduce national human rights protection from a legal instrument to an advisory declaration. Onwards from this commitment, in the eight page proposal there are in essence two overarching objectives set out: first, Parliamentary supremacy over human rights issues is to be re-asserted; and second, the human rights of unpopular groups of people (such as prisoners and foreign nationals) are to be limited. Various steps are outlined as to how to achieve these two overarching objectives.

In order to re-assert Parliamentary supremacy over human rights issues the proposals are, logically, almost exclusively directed at the powers of courts. But this is not just the European Court of Human Rights. Whilst not overt, there is also much in these proposals directed at UK courts. With respect to the ECtHR, it is proposed that: its judgments will no longer be binding over the UK Supreme Court and that section 2 of the HRA (which obliges UK courts to “take into account” judgments of the ECtHR”) will be repealed. It is also proposed that judgments of the ECtHR will be advisory only – only binding in UK law if Parliament agrees; and should the Council of Europe, in careful negotiations, not consent to this approach, it is proposed that the UK will eventually withdraw from the ECHR system and, as a consequence, the Council of Europe.

With respect to UK courts it is proposed that: section 3 of the HRA will be repealed (this is the duty on courts to interpret primary legislation compatibly with Convention rights); that judicial discretion in relation to the interpretation and application of Article 3 (prevention of torture and inhuman or degrading treatment or punishment) will be limited; and that confusing terms such as ‘degrading treatment or punishment’ will be clarified by statute (although it is noted that it will not be possible to clarify every potential application of Convention rights). It is also proposed that judges will only be able to adjudicate in the most serious cases, and that the jurisprudence concerning the extra territorial effect of the HRA will be reversed so that the HRA can no longer be accessed by victims alleging a breach of Convention rights by UK armed forces abroad.

To ensure the complete supremacy of Parliament, the executive is also targeted with a proposal to amend the Ministerial Code to remove ambiguity in current rules about the duty of Ministers to follow the will of Parliament.

The second overarching objective is to limit the human rights of unpopular groups. In order to achieve this it is proposed that Convention rights are clarified to reflect a proper balance between rights and responsibilities – those who do not fulfil civic responsibilities may not enjoy human rights – no indication is given as to what civic responsibilities are but the examples indicate that committing a serious crime should entail the removal of human rights protection from the perpetrator.

Analysis of the proposals was swift and many pointed out the mistakes in the document (such as the fact that the ECtHR has not banned whole life tariffs, and that in our dualist system it does not have legal supremacy over our Supreme Court or Parliament). The misleading nature of the document, particularly concerning the ECtHR was commented upon. Many noted that although the ECtHR has given more than 500 judgments where the UK was the respondent State since 1966 when the UK accepted the right of individual petition, in the proposals only five judgments are referred to and all concern either prisoners or the deportation of foreign nationals. Judgments of the ECtHR with a much wider impact, such as that in Eweida concerning the right of a Christian woman to wear a cross in the workplace, are not mentioned.

It has also been pointed out that many of the proposals are not actually necessary - it is not necessary to prevent the ECtHR from ordering a change in UK law or making our Supreme Court supreme in the interpretation of human rights as this is already the position in national law. And the observation was made by many that the impact on devolution settlements with Scotland, Wales and Northern Ireland has not been properly thought through. It is entirely possible that English votes for English laws could actually result in those living in England having less human rights protection through law than anyone else in the UK.

Other proposals contained in the document, whilst expressed a little differently, are ideas which have actually been around for some time. Replacing the Human Rights Act with a UK Bill of Rights was suggested by the Labour Party in an extensive consultation paper published in March 2009, prior to the last general election. This was also the conclusion of the Commission on a Bill of Rights which reported in December 2012. The idea that responsibilities should be included in a UK Bill of Rights has also been around for some time. In 2009 Labour suggested that in its Bill of Rights and Responsibilities, responsibilities could be “given a greater resonance in a way which does not necessarily link them to the adjudication of particular rights”. It had in mind as responsibilities things like paying taxes, voting, jury service, and the very vague “living within our environmental limits.” The majority of the Commission on a Bill of Rights also thought that it might be a good idea to include in a Bill of Rights a declaratory non justiciable provision setting out the importance within out society of mutual responsibilities to one another.

The relationship between UK courts and the ECtHR has also been the subject of much previous comment. In June 2014 Sadiq Khan, shadow Minister for Justice/Lord Chancellor, stated that UK courts have interpreted section 2 of the HRA in such a way that the judgments of the ECtHR are considered binding. He promised that Labour would make it clear to the judges what Parliament intended by section 2 of the HRA. That they are free to disagree with the ECtHR, that it’s sometimes healthy to do so and that they should feel confident in their judgments “based on Britain’s expertise and strong human rights standing”. Although he stated that power could be shifted back to the courts by guidance alone he did not rule out legislating to make things doubly clear if matters don’t improve.

Members of the Commission on a Bill of Rights could not reach agreement on this issue – some thought the role of the ECtHR was acceptable, others that it had overreached itself.

New proposals
However, it is important to recognise that the Conservative Party has, in effect, taken many of these existing proposals, which have been bubbling away for the last few years, to the next level. Four proposals are particularly draconian, and have caused widespread concern in the human rights community. These are as follows:

Making judgments of the ECtHR advisory only – to be implemented only if Parliament agrees.

Limiting national human rights law for use only in the most serious cases (examples given in the document include cases concerning crime, liberty, property).

Removing the protection of human rights law from those who do not fulfil civic responsibilities.

Drastically limiting the discretion of UK judges in human rights adjudication including the repeal of section 3 of the HRA.

Whilst in flagrant violation of a variety of international laws, there is nothing in our national law to prevent these reforms. However, as many have pointed out, the reforms are not accompanied by an immediate withdrawal of the UK from the ECHR system. The Conservatives propose negotiating a compromise with the Council of Europe, this is highly unlikely given that Article 46 of the ECHR requires compliance with the judgments of the ECtHR. Putting these more extreme proposals into effect would involve not only violation of Article 46 but also Articles 1 (securing rights to everyone), 13 (effective remedies) and 14 (non-discrimination in the enjoyment of Convention rights) plus the numerous other violations as a result of those with “non-serious human rights problems” being unable to secure a remedy before UK courts. Whilst it would take some time, with another general election taking place in the interim, the eventual outcome would be expulsion from the Council of Europe.

Leaving the ECHR system, or expulsion from it, is clearly the most serious consequence which could arise from these proposals. However, should these proposals be put into effect, other issues will also arise, particularly practical ones making it possible to question what, if anything, would be achieved by these reforms. As it is appreciated by the Conservatives, whilst the discretion of UK courts in human rights adjudication is to be drastically reduced, it is not possible to clarify every potential application of Convention rights in legislation. What will be the response of the government and Conservative dominated House of Commons that, as a result of the reform, UK judges become more progressive than the ECtHR? How can our judges be prevented from adopting an interpretation of the proposed “serious case” threshold which is liberal towards all victims? How can our judges be prevented from being inspired by the jurisprudence of the ECtHR even in the absence of section 2 of the HRA? What will be the outcome if our judges determine independently of the ECtHR that the UK Bill of Rights has an extra territorial effect?

The animosity towards the ECtHR in these proposals is to be expected. But what has not been sufficiently commented upon is the animosity towards the role of our courts. If the ECtHR is taken out of the picture but a UK Bill of Rights remains, will the government turn its firepower on our own courts every time a plank of government policy is overturned? Will Parliament have the time to reverse every controversial decision? Will there be efforts made to secure more “political” appointments to the judiciary as a way to counter robust and independent human rights adjudication by our courts?

To date, what has been proposed by the Conservatives on human rights law reform is limited, short-sighted and discriminatory. Whilst you may think that any change will never affect you, think again. Living in the UK means democracy, respect for human rights and the rule of law including the independence of the judiciary. A new Bill of Rights could be an opportunity for positive change, but sadly it seems that this opportunity will not be taken advantage of.