Merris Amos

12 February 2016

Those interested in commenting on the consultation paper on the British Bill of Rights have been poised over their keyboards for so long that there is danger of disinterest taking hold. On 2 February 2016, Lord Chancellor Michael Gove informed Parliament’s EU Justice Sub-Committee that the consultation document will be published “soon” although he was at the mercy of the Prime Minister who “has to be happy” with the document. It is unlikely for anything to appear before the European Union (EU) summit next week. It might also be unlikely for anything to appear before the EU referendum. The swaggering assumption that membership of the Council of Europe and European Convention on Human Rights (ECHR) could easily be offered up as a sacrifice to appease Eurosceptics, whilst we remained in the EU, has vanished. The tenor of the debate over the future of the Human Rights Act 1998 (HRA) has become, in Gove’s words, “nicely, nicely” and those campaigning against the “scrapping” of the HRA are now portrayed as unreasonable. Gove sees the consultation on the Bill of Rights not as a battle, but as a gentle process of exploring possible law reform underpinned by the assumption that “basic rights are admirable”. According to Gove, the consultation will “put forward ideas”, “close attention” will be paid to the responses and human rights will be better and “more sensibly protected as a result”.

This is indeed very nice, we are all busy and the last thing many need is to once again go into battle to help protect the guarantees of the HRA. But is it possible to relax, safe in the assumption that the Government has realised it has no chance of getting a Bill of Rights along the lines outlined in the Conservative Party’s October 2014 proposals Protecting Human Rights in the UK through the House of Commons, let alone the House of Lords? Has it finally accepted that devolution just makes this all impossible, and possibly unconstitutional? Has the embarrassment before international bodies engendered by even suggesting that a great country like the United Kingdom would leave the ECHR system started to filter through? Is basing the reform of fundamental human rights law on the vilification of certain types of claimant starting to look less than robust? Regardless of the motivations for the change in tone on the part of the Government, most are tired of waiting. Enough details of the Bill of Rights have been leaked and hinted at to have a fairly good guess at what the consultation might contain and to put forward some preliminary thoughts on what will be problematic.

Possible features of the British Bill of Rights
A key feature of the consultation will be the plan to repeal the HRA and replace it with a Bill of Rights which will be contained in an Act of Parliament and have no special protection from further repeal or amendment. The UK will remain a member of the Council of Europe and a Contracting State to the ECHR and the Bill of Rights Act will not prevent individuals from taking an application to the ECtHR once national remedies have been exhausted. However, there will be an attempt to change the existing relationship between UK courts and the ECtHR by not including an equivalent of section 2 of the HRA in the Bill of Rights (the duty to take into account the jurisprudence of the ECtHR when interpreting and applying the HRA). Whilst it will not be banned for UK courts adjudicating in Bill of Rights claims to take into account this jurisprudence, they will be encouraged to also consider human rights jurisprudence from other sources including the courts of other Commonwealth countries.

Many procedural features of the HRA will be retained in the Bill of Rights including section 4 (declaration of incompatibility), section 6 (duty on public authorities) and section 7 (victim test). However, there is a question mark over the inclusion of an equivalent of section 3 which empowers courts to interpret Acts of Parliament compatibly with the Convention rights, so far as it is possible to do so. New procedural features may include: enshrining parliamentary sovereignty in law; introducing a “seriousness threshold” (only “serious” claims will be allowed to proceed to trial); a limit on extra-territorial effect; and a limit on the amount of damages which can be awarded for a violation of the Bill of Rights, although this will not be a cap on damages. It is also possible that a “German style” procedure allowing the Supreme Court to “check” judgments of the ECtHR (and EU measures) for whether or not these might entail a “loss of essential constitutional freedoms” if the UK were to comply will be included, but the details of this are (to be kind) very vague at present.

In addition, the Prime Minister has asked the National Security Council to draw up a plan to “stamp out” what he described as an “industry” trying to profit from servicemen and women through “spurious claims”. This might be pursued via the procedural changes in the Bill of Rights outlined above, or it might be addressed separately. Gove told the EU Justice Sub-Committee last week that there might also be a derogation from the ECHR when the UK armed forces were engaged in conflict in the same way that France has just declared a state of emergency. If not included in the Bill of Rights consultation, such plans will not be the subject of further consultation so it is hoped that such serious proposals will be included.

Finally, many of the substantive features of the HRA will be retained in the Bill of Rights such as the particular human rights protected and the wording, for most, will continue to be closely modelled on the ECHR although “glosses” on some rights may be included such as an affirmation of the importance of freedom of expression, similar to section 12 of the HRA, or the more pernicious Part 5A of the Immigration Act 2014 which applies to the interpretation and application of Article 8 (the right to private life and family life) in immigration decisions. It may also be made clear, rather pointlessly, that the EU Charter of Fundamental Rights does not create any new human rights in national law and its status remains the same as it has always been.

Many different perspectives could be taken on what we are likely to find in the Bill of Rights proposed in the consultation. It could be argued that most of the changes proposed are meaningless and designed to appease those who are anxious and sceptical about the role of the ECtHR, the role of national judges and human rights law generally. But it could also be possible that were these changes to be given effect, national human rights protection through law will be drastically reduced resulting in a steep increase in violations found by the ECtHR on the part of the UK and eventually result in the UK leaving, or being expelled from, the Council of Europe. In the following paragraphs, three arguments against the proposals will be made: first, the government, whilst it has softened the tone of the debate, still has not presented a convincing case against the HRA; second, rather than progress in the protection of human rights through law, what will be proposed is clearly going backwards; and finally, many of the proposals will damage the UK’s increasingly good record with the ECtHR (prisoner voting aside).
No convincing case against the HRA has been presented
Since October 2014 various reasons have been given for repealing the HRA and replacing it with a Bill of Rights. It has been contended that human rights law is out of control, is inflated, and is lacking in common sense and credibility. Dominic Raab, Minister for Human Rights, and Michael Gove have both stressed that human rights are becoming “dirty words” in the minds of the public. It has also been claimed that the application and interpretation of human rights law by our courts does not reflect a “proper” balance between rights and responsibilities, and that the ECtHR overrules our Parliament and Supreme Court and generally orders changes in UK law. Last week before the EU Justice Sub-Committee, Gove softened this line a little stating that human rights have a bad name as they are associated with “unmeritorious individuals” and imposed by “foreign intervention” and that an objective of the Bill of Rights was to affirm these rights as “fundamental British rights”. His desire is to give effect to human rights in a better way and a more “British way” – it was not clear if, in his mind, the two are mutually exclusive.

The opinion that some people are upset by who can make claims under the HRA, its essential “Europeaness” and the lie that the ECtHR can overrule our Parliament and Supreme Court is a fairly flimsy basis upon which to embark on the reform of the fundamental human rights protection of the people of the UK. As I have written many times, only a very limited number of examples can ever be produced by the Government to support their argument that human rights law is out of control and these examples almost exclusively concern prisoners, foreign nationals who have committed crimes and Iraqi civilians. No reason is ever offered as to why these groups should be considered less than human, and therefore not entitled to the full protection of human rights law. There is also no mention of anyone else including the thousands who have benefited from the HRA including members of the armed forces and their families. At present, this does not look like a genuine exercise in law reform, but more akin to driving home a political and ideological agenda.

Going backwards not forwards
Even the most optimistic person would not be able to describe what has been proposed so far as progress towards more effective human rights protection through law. Many admit that the HRA is not perfect and does suffer from some genuine problems, most of which are unlikely to be addressed in the consultation. Knowledge about the HRA amongst the general public, and public authorities, remains very poor as does respect for it, encouraged by a mostly hostile press and damning comments made by government ministers and other public figures since 2001. This was a key problem identified by the majority of the 2012 Commission on a Bill of Rights supporting its conclusion in favour of a UK Bill of Rights. Whilst in recent weeks Gove has also tried to echo these sentiments, this seems very disingenuous given the tenor of the debate until very recently. If the Government were genuinely concerned about building respect for national human rights law, it would consistently state that its objective is to improve human rights law for everyone, not that its protection should be removed from certain groups and that the UK should be removed from the ECHR system. Furthermore, a detailed Bill of Rights public education campaign, with significant funding and a long term commitment from government should also be planned for.

Other existing problems with national human rights protection could also be addressed. The HRA gives effect to an outdated list of civil and political rights and effectively ignores economic, social and cultural rights. Most people of the UK are not really interested in enhanced protection for freedom of expression, or the right to a jury trial, but would be interested in a right to healthcare, a right to housing or a right to fair and just conditions of work. Even if these were not included as justiciable rights, there is scope for a new Bill of Rights to include such rights as a guide to Parliament when making law, and a guide for public authorities when carrying out their functions. The HRA victim test, which precludes test cases being brought, with the exception of those brought by the Equality and Human Rights Commission, could also be broadened. Section 2 could be reformed to make clear that the jurisprudence of the ECtHR provides a floor rather than a ceiling for human rights protection. And rather than removing the innocuous section 3 of the HRA, efforts could be made to ensure that criticisms of the section 4 declaration of incompatibility are addressed, particularly the conclusion of the ECtHR that it is not an effective remedy which must be sought prior to making an application.

Damaging our good relationship with the ECtHR
Finally, it is likely that the British Bill of Rights will inevitably damage the UK’s currently good relationship with the ECtHR. To date, 2015 has been the best year ever for the UK before the Court with only nine judgments concerning the UK and violations only found in two of these judgments. It was a similar story in 2014 with 14 judgments concerning the UK and violations found in only four of these. These results are in stark contrast to 2002, when the HRA was yet to have an impact on the applications before the Court – there were 40 judgments concerning the UK and violations found in 30 of these. UK courts are also now having an influence on the ECtHR beyond reducing the number of applications and violations. Sometimes they expressly enter into a dialogue with the Court having stated that a particular judgment is wrong such as happened in Horncastle. On other occasions they have found scope for the application of the UK’s margin of appreciation. But mostly they are faithfully interpreting and applying the Convention rights in the same way as the ECtHR. In some instances, this can result in a UK court making a significant contribution to the development of Convention jurisprudence which has repercussions for all of the Contracting States to the Convention – such as happened in Austin. Or a UK court might play an important part in convincing the ECtHR that the margin of appreciation should apply and the UK should, compatibly with the Convention, be able to maintain a particular national position – such as happened in Animal Defenders. Or it might be just that a UK court has applied the settled jurisprudence of the ECtHR to its interpretation and application of the Convention rights at the national level, resulting in a finding of no violation on the part of the Court.

Our excellent relationship with the ECtHR is because our national courts are able to interpret and apply the Convention rights in exactly the same way as that Court. For this to continue, the Bill of Rights needs to provide the same or better protection than the ECHR. This may no longer be the case with the Bill of Rights as, unlike the HRA, it may not have extra-territorial effect and the armed forces will be protected from people “using human rights law to sue for damages”. It may also limit the amount of compensation “that can be won by those claiming their human rights have been infringed by public bodies”. And it is possible that only claims that meet a “certain level of seriousness” will be considered by courts.

The extra territorial effect of the ECHR, where countries exercise their authority abroad or have “effective control” of territory, is now a key part of ECHR and HRA jurisprudence. Whilst the UK remains within the ECHR system it must comply with this jurisprudence or face the fact that if claims from soldiers or their families, or from civilians abroad, are not possible under the British Bill of Rights, these claims will be made direct to the ECtHR and it will most likely find the UK in breach of the ECHR. Limiting the amount of damages to be awarded will also have the effect of increasing the number of applications against the UK to the ECtHR. An applicant loses his or her victim status before the Court if he or she has already brought the same claim at the national level and received adequate redress. A low damages award may not be regarded by the ECtHR as adequate. Similarly, the ECtHR will not accept an application where the victim has failed to exhaust domestic remedies. A Bill of Rights claim resulting in a low or capped damages award will not be considered an effective remedy thereby allowing the application to proceed although the substance has already been considered at the national level. A seriousness threshold, which results in a claimant having no remedy at the national level for a violation of Convention rights, will also lead to an increase in applications to the ECtHR.

In the next few weeks, the consultation document on the British Bill of Rights may be published and we will finally have, as Gove has promised “meat on the table to pick over”. It will be important to continue to press the Government for its view on what is actually wrong with the HRA, apart from the protection it offers to vulnerable and marginalised groups not popular with some of the electorate. It will also be important to point out that an opportunity for progress in the protection of human rights through law should not be squandered, and the UK’s reputation as a country leading the way on human rights protection in the world and before the European Court of Human Rights put in serious jeopardy.