Merris Amos

27 May 2015

With the election over, attention has now turned to the new government’s legislative agenda to be announced in today’s Queen’s Speech. It is widely assumed that the “scrapping” of the Human Rights Act 1998 (HRA) via a new British Bill of Rights will be included although this should not come as a surprise given that the Conservative Party has been promising this since 2006. The real surprise is that they are finally in a position to attempt to do it.

The pledge to proceed with scrapping the HRA has been met with an outpouring of emotion on both sides of the debate. Some Conservatives are upset that too little attention has been paid to their proposal for a new Bill of Rights. However, when the promise is to “scrap” it should have been expected that the response would be a spirited campaign to “save” the HRA. No serious interest can actually be taken in the new Bill of Rights given that the people of the United Kingdom are yet to see a copy of it. All we have to go on are vague manifesto commitments and the inane proposals released in October 2014. Katie Hopkins recently had a stab at drafting a Bill of Rights based upon this hodge podge of myths and misunderstandings. Surprisingly, the outcome is likely not too wide of the mark, perhaps she is working behind the scenes at the Ministry of Justice?

It has been widely reported that a majority of MPs, including Conservative MPs, are preparing to vote against the scrapping Bill in the House of Commons and that it stands no chance of getting through the House of Lords. What is important now is that the support for the HRA and the arguments against the Bill of Rights do not blow themselves out before the real fight begins in Parliament. The purpose of this essay is to present the arguments against the British Bill of Rights and Responsibilities.

What can we expect from the British Bill of Rights?
As noted above, we don’t really know at this point what to expect from the British Bill of Rights. It could be that what is planned will be entirely innocuous, essentially a re-branding with the hope that this will be a clear enough message to all those baying for action against interfering Euro-judges and those who do not fulfil their responsibilities to society. But the lesson of the general election is to be prepared so the worst case scenario is what must be addressed.

In the Conservative Party’s election manifesto, the overarching objective is to “restore common sense to the application of human rights in the UK”. In order to achieve this objective, it is proposed that the Bill will “remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights (ECHR).” There is a promise to protect “basic rights” such as the right to a fair trial and the right to life. But these are the only two rights explicitly mentioned. It is also promised to “reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.” However, no examples are given to illustrate what this means. Further sections indicate that rights will be limited for some groups, such as foreign nationals appealing against deportation decisions. The “deport first appeal later” rule will be extended to all immigration appeals and judicial reviews, apart from asylum claims, including where a right to family life is involved. A new removals strategy will also be implemented to “take away opportunities for spurious legal challenge”. The role of journalists will be granted explicit protection and police will be banned from accessing journalists’ phone records to identify sources without prior judicial approval. With respect to the European Court of Human Rights (ECtHR), it is promised to “break the formal link between British courts and the European Court of Human Rights” and make the UK Supreme Court “the ultimate arbiter of human rights matters in the UK” but no further explanation is given. By contrast, in the section titled “Britain standing tall in the world”, it is promised to continue to support universal human rights.

Various proposals made in the October 2014 document Protecting Human Rights in the UK on the content of the British Bill of Rights are missing. These include: making judgments of the ECtHR advisory and only binding in UK law if Parliament agrees; the repeal of section 3 of the HRA; limiting judicial discretion in relation to the interpretation and application of Article 3 of the ECHR (freedom from torture and inhuman or degrading treatment or punishment); limiting claims under the new Bill of Rights to only the most serious cases; reversing the extra-territorial effect of the HRA, or ensuring the new Bill of Rights does not apply extra-territorially; removing the protection of human rights law from those who do not fulfil civic responsibilities; and leaving the ECHR system should the Council of Europe not consent to these changes.

Taking the manifesto and the October 2014 proposals together, the gist of the proposed British Bill of Rights could be summarised in three parts as follows. Part One: those who do not fulfil civic responsibilities, such as prisoners and foreign nationals, will not have the protection of human rights law; Part Two: this is unlawful under the ECHR so we will leave the ECHR system of protection so the ECtHR cannot criticise us about it; Part Three: the discretion of pesky UK judges will be limited so they cannot inhibit our plans, and if that fails, we will legislate to remove their independence in human rights adjudication even further. The arguments which can be made against these proposals are set out below.

There is no mandate for this extreme level of constitutional change
The Conservative Party did win the general election, has formed a government and does have a slim majority in the House of Commons. However, as Lord Neuberger, President of the Supreme Court, stated in a speech in October 2014, in the modern world “democracy cannot simply mean the tyranny of the majority, or oppression of any individual’s fundamental rights.” He also urged his audience to never forget that “Hitler and Mussolini came to power through democratic elections.”

The HRA was one of the first actions of the new Labour government elected in 1997. It was a clear manifesto commitment of the Labour Party and accompanied by a detailed and well researched consultation paper Bringing Rights Home by Paul Boateng and Jack Straw setting out Labour’s plans to incorporate the ECHR into UK law. The prospect of human rights protection through law was an important talking point in the run up to the general election of 1997, something which greatly distinguished Labour and the Liberal Democrats from the Conservative Party. There was also the Cook-Maclennan agreement between these two parties which included a commitment to the HRA. 71.4 percent of the electorate turned out to vote on Thursday 1 May 1997 and Labour received 43.2 percent of the vote. If the 16.8 percent share the Liberal Democrats received is added, it could be said that 60 percent of those voting were voting for the HRA. The White Paper, Rights Brought Home, preceded the introduction of the Human Rights Bill into Parliament and was the subject of consultation and comment.

Surely to “scrap” the HRA a similar mandate for change should be present? The position in 2015 is vastly different. Repealing the HRA and replacing it with a British Bill of Rights was a manifesto commitment of the Conservative Party but, as noted above, it is not yet clear what the Bill of Rights will contain. The proposals published in October 2014 contained numerous errors, repetition of myths and misunderstandings including spelling mistakes and the lies that the ECtHR had banned whole life tariffs and that it was able to overrule the UK Supreme Court and Parliament. Of the 500 judgments the ECtHR has delivered concerning the UK, only five were mentioned. The British Bill of Rights was most certainly not an important issue in the run up to the general election and received no mention during televised party leaders’ debates. The majority of the Commission on a Bill of Rights, which reported in 2012, recommended a UK Bill of Rights only on the basis that it would incorporate and build on all of the UK’s obligations under the ECHR and provide no less protection than that contained in the HRA. On Thursday 7 May 2015, 66.1 percent of the electorate turned out to vote and the Conservatives received 36.9 percent of the vote well short of the 60 percent voting for the HRA in 1997. Furthermore, Labour, the Liberal Democrats, the SNP and the Green Party in their manifestos had all expressly committed to keeping the HRA. Combined they received 46.8 percent of the vote.

Other important principles are also at stake. It is well known that the UK has no codified constitution therefore making changes to the constitution, such as what is proposed, possible via a simple Act of Parliament. The most recent large scale constitutional debate concerned Scotland’s referendum on independence in September 2014. No-one living in the UK at the time would have escaped the arguments presented, for both sides. Not to downplay the importance of this moment, but the outcome would have had the most serious implications for the 5 million people of Scotland – with less serious implications for the remaining 59 million people of what was left of the UK. Surely the scrapping of the HRA, the prospect of removing international human rights supervision and the creation of a two tier system for human rights protection is worthy of a similar level of consultation, debate and discussion? Or should serious constitutional change planned on the back of an envelope be added to the list of British values Theresa May is trying to draw up?

No convincing case for the British Bill of Rights has been presented
To date, the case presented by the Conservatives for scrapping the HRA via a British Bill of Rights can be summarised as follows:
Human rights law is out of control, lacking in common sense and credibility, regularly applied in non-serious cases and occupying areas which no-one ever expected. It has even prevented the armed forces overseas from doing their job.
The application and interpretation of human rights law by UK courts does not reflect a “proper” balance between rights and responsibilities.
The European Court of Human Rights must be stopped from overruling our Parliament our Supreme Court and generally ordering changes in UK law.
UK judges are threatening the sovereignty of Parliament with their application of section 3 of the HRA – the duty to interpret primary legislation compatibly with the Convention rights, so far as it is possible to do so.
To support the argument, six case examples are given: prisoner voting; rights of prisoners to artificial insemination; foreign nationals who have committed crimes; the whole life tariff; and the reversal of the burden of proof in one judgment. One of my tutorial questions every year is “what criticisms can be made of the HRA?” I am happy to accept arguments from any perspective. However, were the arguments listed above to be presented, it would be a definite fail.

First, the easy ones. The ECtHR cannot overrule our Parliament or our Supreme Court. Its judgments remain international law until they are acted upon by our Parliament or our courts. As the prisoner voting example demonstrates, the ECtHR simply does not have the power the Conservatives claim it does. Secondly, section 3 of the HRA is the most innocuous section imaginable. The only example which has been given by the Conservatives to illustrate their point was a judgment delivered in 2001! Section 3 saves Parliament time by allowing the courts to deal with the little bits of statute that may fall foul of the HRA. It is interesting that not included as an example was one of the most important section 3 cases where the tenancy rights of the surviving partner to a same sex relationship were protected on the death of his partner. Furthermore, if Parliament doesn’t like what the courts have done, it can change the law back again.

In answer to the first two arguments, many in the press also believe human rights law has progressed too far in protecting the rights of “unpopular” groups such as prisoners, asylum seekers, and foreign nationals convicted of a crime and that in order to enjoy rights, responsibilities must be fulfilled. Usually they have only heard of, or are mostly concerned about Abu Qatada and prisoners getting the vote. Similarly the Conservatives were unable in their proposals to come up with anything apart from prisoners or foreign nationals. But what about everyone else? What about the thousands of people who have benefited from the HRA who are not prisoners or foreign nationals? Why should the 64 million people of the UK, including members of our armed forces deployed overseas, suffer reduced protection for their human rights and lose the valuable supervision of the ECtHR because of a handful of foreign nationals and the prospect that at most, 28,000 prisoners may one day get the vote?

The British Bill of Rights will be subject to legal challenges for many years
The UK’s constitutional lawyers have already warned of the legal minefield ahead should the British Bill of Rights make it through Parliament. The guarantees of the HRA are contained in the devolution settlements with Scotland, Wales and Northern Ireland and were this level of protection not respected, a challenge to the lawfulness of the Bill of Rights would be inevitable with the likely result that the only country of the UK where the Bill of Rights would actually come into full force would be England. Experts on the law of sovereignty have questioned whether the validity of the Bill of Rights itself could be challenged given it would be making a fundamental constitutional change without appropriate consultation of the electorate or its informed consent, the bedrock upon which the sovereignty of Parliament is built. Furthermore, an Act which made distinctions between categories of those “deserving” and “undeserving” of human rights protection could be challenged using the common law right of equality before the law. The common law is a powerful thing and senior judges have hinted in the past that an Act of Parliament such as this repealing the HRA would not be upheld.

There will also be challenges to the validity of the Bill of Rights in the ECtHR given that immediate withdrawal from the ECHR system has not yet been proposed. Two ECHR rights in particular would be clearly breached by the British Bill of Rights: Article 13 of the ECHR provides that countries which have ratified the ECHR, must provide effective remedies for the violation of the ECHR in their national legal systems; and Article 14 provides that human rights must be secured to everyone equally, without discrimination. Given the events of the WWII, the drafters of the ECHR considered it imperative to ensure that countries were prevented from creating divisions between those deserving of human rights protection through law, and those who were not. Were the UK not to comply with these findings of violation by the ECtHR, it would eventually result in the UK’s expulsion from the Council of Europe had it not already left.

These things take time and it is likely that in five years the Conservative Party will be going into a general election facing expulsion from the Council of Europe, censure over its human rights policy from various United Nations bodies and responsible for the break-up of the UK. Given the HRA now enjoys more popular support than it has ever enjoyed before, to defeat the Tories the other parties would merely have to promise to restore the guarantees of the HRA and re-establish the UK’s reputation in the world as a protector and defender of human rights. In short, this is not only bad law, it is bad politics.

If the objective of the new Bill of Rights is to ensure that those accused of a crime, prisoners, asylum seekers, foreign nationals and those abroad, such as Iraqi civilians, do not enjoy full human rights protection through law in the UK legal system, this needs to be clearly stated. Similarly, if the ultimate objective in relation to the ECtHR is to ensure that an international court does not interfere with government plans, on the assumption that national courts are more easily controlled, that also needs to be clearly stated. Confusing the people of the UK with talk of Bills of Rights and Responsibilities and “negotiating” the UK’s position with the Council of Europe is disingenuous. It also diverts attention from what is really planned.

History demonstrates that once a government, and legislature, starts “limiting” rights for certain groups, whose members are already unpopular with the majority, this is just the beginning of something far worse. Popularity waxes and wanes, if a government can get away with taking away rights for some, of course it will eventually try to take away the rights of a few more. Under the Coalition government, the disabled, families with disabled children, those on state support and those who rely upon legal aid to bring a claim to court suffered terribly. Some moderate gains were made by using the HRA to fight back and as austerity cuts worsen, it is likely that both the national courts and the ECtHR will look again at their reluctance to use human rights law to interfere in these “economic” decisions of the State. A government planning ahead would want to cut off this chance as soon as possible. Having already succeeded in establishing a two tier system of human rights protection, with no oversight from an international human rights court, how simple it would be to add to the list of those not deserving of human rights protection those who rely upon state support to get by.

Coinciding with the recent re-launch of Mad Max, some have argued that we have entered an era where the “future belongs to the mad”. I don’t agree and have great faith in our Parliament particularly our MPs who appreciate, as Lord Neuberger and the Spiderman films constantly remind us, that “with great power comes great responsibility”. There is no mandate for the British Bill of Rights, and no convincing arguments have been set out for it. It will be mired in legal challenges for years to come, and unless the independence of the British judiciary is emasculated, it won’t work. See it for what it is, a naked grab at cementing omnipotent power in order to push through changes to core British values without barrier or question, and hope that our MPs do the right thing.