Merris Amos

15 December 2016

Implementation of the European Convention on Human Rights (ECHR) at the national level is an important topic – even more so for the United Kingdom where we are embarking upon, according to our Prime Minister, a “red, white and blue” parting from the European Union – whatever that might mean. In this post, three issues of implementation are discussed: first, the positive – how the UK generally embraces implementation of the ECHR; second, the negative – problems which have arisen with implementation and what explains these; and finally, the future of implementation in the UK – is it a bright future? Or is there trouble ahead?
A positive story
First, the positives. The UK’s record before the European Court of Human Rights (ECtHR) remains relatively good. So far this year, there have been 12 judgments of the Court concerning the UK and violations found in six judgments. These judgments mostly concern facts limited to the individual applicants where the remedy of just satisfaction is swiftly provided by the UK and no widespread, controversial change, such as giving prisoners the vote, is required. There is now therefore much less opportunity for clashes over questions of implementation to arise.

It is also important to appreciate that even where there have been difficulties with implementation caused by the politicisation of an issue, such as that which arose over the extradition of Abu Qatada to Jordan, he was not actually extradited until more than 18 months after the judgment of the ECtHR and only once an agreement had been reached with Jordan that his trial would not involve the use of evidence obtained by torture.

Courts, Parliament and even the executive are geared towards preventing violations of the Convention and implementing judgments of the ECtHR. Our national human rights law, the Human Rights Act 1998 (HRA), gives effect to the Convention rights at the national level utilising the same procedural and substantive guarantees. Section 2 of the HRA obliges our courts to take into account the jurisprudence of the ECtHR and this is almost always followed. In Parliament there is a dedicated parliamentary scrutiny committee, the Joint Committee on Human Rights. Its work includes scrutinising every Government Bill for its compatibility with the ECHR and the government’s response to court judgments concerning human rights.

The Executive also plays a part in effective implementation. The Ministry of Justice has a co-ordinating role for other government departments, communicating developments to relevant departments, and producing a weekly email update to highlight significant cases and judgments. Pre-legislative human rights scrutiny has improved. An example is the passage of the Investigatory Powers Bill which concerns the interception of communications and the acquisition and retention of communications data. On its introduction to Parliament, the Bill was accompanied by an ECHR memorandum from the Home Office containing specific references to relevant judgments of the ECtHR. Whilst there was disagreement with the conclusions reached by the Home Office that the Bill was fully compliant with the ECHR, publication of the Memorandum was a welcome development.

The negative story
Of course, the biggest problem in the UK with the implementation of the EHCR is the failure to implement the judgment of the ECtHR concerning the blanket ban on prisoner voting. This was found in March 2004 to be in violation of Article 3 of Protocol 1, a judgment which was upheld by the Grand Chamber in 2005. The UK response will once again be considered by the Committee of Ministers in its December meeting. In its communication to the Committee, the Government states that it is still considering measures “that could potentially help to address this judgment” – and it wants a further 9-12 months to develop options as it hasn’t got a lot of time to think about it given all the effort going into leaving the European Union.

However, in the Ministry of Justice’s most recent report on the implementation of human rights judgments, published in November 2016, the language used in relation to the implementation of this judgment has hardened since the last report in 2014. A new sentence has been added:

The Government is currently in dialogue with the Committee of Ministers on this issue. The Government is clear that the UK’s policy on prisoner voting is well established and remains a matter for the UK Parliament to determine.

Whilst earlier this year it looked as if there might finally be a resolution to this problem with the former Minister for Justice, Michael Gove possibly including this in a package of measures concerning prison reform, swift resolution now looks unlikely although has not yet been ruled out. It is also important to note that the government is not only delaying implementing a judgment of the ECtHR but also a national declaration of incompatibility made in 2007 and still not acted upon.

The second implementation problem, also under the consideration of the Committee of Ministers, is the large number of adverse judgments concerning Article 2 breaches for failures to properly investigate deaths which occurred during The Troubles in Northern Ireland. Here the problem of implementation is different. The issue is not highly politicised and unlike prisoner voting, is not regularly raised by opponents of human rights protection as a reason for the repeal of the HRA or withdrawal from the ECHR. In its reports to the Committee of Ministers, the Government displays a genuine desire to move forward and provide funding for the Stormont House Agreement measures for dealing with the past including an Historical Investigations Unit. However, it has been unable to reach agreement with Northern Ireland parties, victims’ groups and other stakeholders as to the form the inquiry process should take. According to many, a key problems is the perception that the government will use “national security” to cover up facts that might embarrass the government including criminal behaviour by state agents. But there is reason to be a little more optimistic that an agreement might eventually be reached on this than in relation to prisoner voting.
The future
Since the Conservative Party won the May 2015 general election and formed a government, there has been the very real prospect that the UK will withdraw from the ECHR and the Council of Europe. In late April this year, Prime Minister Theresa May, in her speech on Brexit prior to the Referendum, announced that whilst she thought the UK should remain a Member State of the EU, the case for remaining a part of the ECHR system was not clear. In her view, at the time, the ECHR:
. . . can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights.

Following the vote in the 23 June referendum to leave the EU, her stance on the issue very quickly changed as she positioned herself to become leader of the Conservative Party and therefore Prime Minister. In late June she announced that should she be elected leader, she would not pursue her former plan to lead the UK out of the ECHR as well as the EU – not because she thinks this is morally bankrupt, but because she appreciated that she wouldn’t have the votes in Parliament to do it. Should the Referendum result have gone the other way, it is likely that we would now be considering plans for leaving the ECHR – if this had not already happened.

It can be safely assumed, for now, that the ultimate blow to implementation – withdrawal from the ECHR, is no longer in the UK’s immediate future. Although it is important to note, should aspects of the hard Brexit proposed conflict with ECHR guarantees, this may once again hasten departure. However, in the current Eurosceptic climate, it is likely that problems of implementation will be amplified and there are three risks to be aware of: the prospect of a British Bill of Rights; the modification of the wording of Convention rights in national law; and the politicisation of issues that were not political before.

British Bill of Rights
First, the British Bill of Rights. It remains a commitment of the current Conservative government to replace the Human Rights Act with a British Bill of Rights. Whilst Brexit has de-railed these plans, it is still possible that legislation may be introduced into Parliament before the next general election in 2020. Whilst no consultation paper has yet been released, various leaks and statements in Parliament indicate that the Bill of Rights will not include an obligation on UK courts to take into account the jurisprudence of the ECtHR. It will also place a limit on extra territorial effect of human rights law; cap damages; and only allow the most serious claims to be considered by national courts. Glosses on some rights might also be included such as an emphasis on the importance of freedom of expression. Should the British Bill of Rights ever come to fruition, it is highly likely that it will damage the UK’s currently good relationship with the ECtHR which exists because our national courts are able to interpret and apply the Convention rights in exactly the same way as the Court.
Modifying the Convention rights
The second risk to implementation is modification of the meaning and interpretation of Convention rights in national law. This process has already started. Part 5A of the Nationality, Immigration and Asylum Act 2002, which came into force last year, has modified the meaning of Article 8, private life and family life, when it is applied to deportation or extradition, in an attempt to limit judicial discretion. Aspects of the law are very controversial such as section 117B which provides that it is “in the public interest . . that persons who seek enter or remain in the United Kingdom are able to speak English”.

The compatibility of this law with the ECHR is currently being tested before the UK courts – the Court of Appeal recently held that in an exceptional case, the new law cannot be decisive and override the guarantees of Article 8. It is likely that the compatibility of the new law with the ECHR will eventually be tested before the Supreme Court and then the ECtHR.

Politicisation of issues that were not political before
The final risk to implementation is the phenomena of the politicisation of issues which started out as fairly non-political and non-controversial. This has been the case with the judgment of the ECtHR in Al-Skeini in 2011 where it was held that the ECHR had an extra territorial effect and applied to the actions of UK armed forces in Iraq. Whilst there were some grumblings when the judgment was delivered, it did not actually cause a significant implementation problem. At present, investigations into violations of Articles 2 and 3 are conducted by the Iraq Historic Allegations Team which was established in 2010 to review and investigate allegations of abuse by Iraqi civilians by UK armed forces personnel in Iraq from 2003-2009. It was reported earlier this year that the government has paid £20 million in settlement of 326 claims to date.

But the judgment has now become politicised. Since 2013 there has been a backlash against the judgment and calls to exempt the UK armed forces from the HRA. In October, Prime Minister Theresa May announced:

We will never again – in any future conflict – let those activist left wing human rights lawyers harangue and harass the bravest of the brave, the men and women of our armed forces.
Defence Secretary Michael Fallon has also promised that in future conflicts Britain would exempt itself from parts of the ECHR in order to protect the armed forces from “industrial scale claims”. Whilst the plan was to introduce legislation to Parliament to achieve this objective, this has yet to happen. A number of problems of implementation arise from this plan – it is not possible to derogate from Articles 2 and 3; it is not possible to derogate in advance of an actual deployment of the armed forces; and a blanket exemption of the UK armed forces from the HRA will place the UK on a collision course with the ECtHR regarding a highly politicised issue – possibly the “prisoner voting” issue of the decade.
To conclude, it is useful to look for a pattern in those issues where the UK has a problem of implementation. Whilst it has been mooted that implementation problems are based in both resources and politics, the evidence suggests that politics is the dominant reason. When this is combined with a government that professes to be committed to implementing the will of the people, Brexit, and growing criticism of the ECHR in other States, in the future it is unlikely that any judgment of the ECtHR high in the political stakes will ever be implemented. As the experience with extra-territorial effect indicates, it is also possible that formerly non-politicised judgments will become politicised and cause implementation problems in circumstances which cover the same facts. As we endure Brexit over the next decade, it is clear that in the UK we need a new focus and emphasis on the place and value of international law and international supervision. The key question has now become how to make the Convention system popular with the new populists?