In this post I offer some comment on the Conservative Party's document "Protecting human rights in the UK" It has attracted an enormous amount of critical comment already (links at the end).
There is clear dislike (even hatred) by certain Ministers of the European Convention on Human Rights (E Conv HR); the European Court of Human Rights (E Ct HR) and the UK's own Human Rights Act 1998 (HRA 98). This attitude undoubtedly stems from the simple fact that the system of human rights protection acts as a check on Ministerial (executive) power. It exists to protect the individual - ALL individuals - from the untrammeled power which the State might otherwise exercise. It appears that Ministers think it is best to water down or remove the existing protections whilst, if they can, maintaining a facade of adherence on the international scale.
Please read my previous post (Human Rights protection in Britain - 10 key points) for the key points in the system of human rights as it exists and for examples of how the E Conv HR has enhanced our law. That post also touches on the unacceptable level of deliberate misrepresentation engaged in by Ministers and the media. When hearing Ministerial rhetoric about the problem "Strasbourg court" it is worth remembering that The UK lost just eight cases last year.
In a nutshell, the Conservatives are proposing a Bill of Rights and Responsibilities and repeal of the HRA 98. They say that the text of the original human rights convention will be put into primary legislation but the rights will be "clarified." Some examples of "clarifications" are given (e.g. regarding deportation of those who have been convicted of criminal offences) and it seems likely that there would be a considerable number of such "clarifications." A number of terms would receive more precise definitions (e.g. what is degrading treatment and punishment). Regrettably, it is a minimalist and regressive view of human rights protection.
Serious concerns are likely to be raised by the devolved administrations in Edinburgh, Belfast and Cardiff. This post does not examine this further but see, for example, the discussion by Aileen McHarg on UK Human Rights blog and by Lallands Peat Worrier 4th October - Devolution: Grayling's human rights petard.
There would be discussions with the Council of Europe aimed at securing agreement that the approach is a legitimate way of applying the convention and, if unable to secure such agreement, it is claimed that there would be no alternative but to withdraw from the E Conv HR. Obviously, in practice, there would be alternatives if a future government wished to examine them - e.g. come up with another scheme more acceptable to the Council of Europe or retain the present scheme with or without modifications.
Their case for change is based on 4 points - [A to D below].
A] "Mission creep" - the Living instrument -
The document criticises the "living instrument" doctrine developed and applied by the E Ct HR. It is claimed that this has been used to expand the Convention into new areas beyond the original intentions of those who drafted the convention in the early 1950s. A number of issues (e.g. prisoner voting) are used as examples to bolster their criticism but the document is misleading and the correct position is not always stated.
Prisoners and voting -
The franchise was not in the original 1953 version of the convention BUT the 1st Protocol to the Convention (in force 18th May 1954 - less than 12 months after the convention itself came into force) included a right to free elections. It states:
Another approach to the issue might be for government to seek, via the Council of Europe, to have the first protocol amended so as to permit governments to deny prisoners the vote. I am not aware of any attempt to do this and the prospects of success are perhaps doubtful.
Sentencing murderers -
The E Ct HR has not ruled out whole life terms because of Article 3. They have required a review mechanism so that a prisoner might be released - perhaps after many years - if there are no continuing penological grounds to detain him. The Court of Appeal (Criminal Division) has ruled that the Crime (Sentences) Act 1997 s.30 is a suitable mechanism for this purpose.
In effect, on this issue, the government has already got its way!
B] The Human Rights Act undermines the role of the UK courts in deciding on human rights issues in this country.
The HRA98 section 2 requires our national courts to "take into account" decisions of the E Ct HR. This does not amount to a slavish following of every E Ct HR decision and the Supreme Court of the UK has already recognised this. A consistent line of E Ct HR decisions (especially in the Grand Chamber) might well be followed but the Supreme Court of the UK is clear in saying that it would not follow the E Ct HR if, for example, fundamental principles of our domestic law were to be compromised.
C] The HRA undermines the sovereignty of Parliament and democratic accountability to the public:
The document acknowledges that the HRA preserves the sovereignty of Parliament but it is argued that this is undermined in practice by HRA s.3 which requires the courts - so far as it is possible to do so - to read legislation in a way which is convention compliant. It is argued that the courts have gone to "artificial lengths" to change the meaning of legislation.
This is not an easy area of the law but it has to be remembered that the HRA also contains the Declaration of Incompatibility mechanism (section 4). If the court does not consider that it is possible to read legislation in a compliant way then such a declaration may be issued. This alerts Parliament to the incompatibility but, very significantly, does not alter domestic law. Amending the law is for Parliament.
The courts have avoided strained interpretations of legislation which clearly go against the grain of the legislation. After all, the HRA gave judges a new tool for interpretation but did not give them a right to legislate. So, in Bellinger v Bellinger  UKHL 21 the House of Lords refused to read the Matrimonial Causes Act 1973 s.11 in a way which would have recognised as valid a marriage of a man and his partner who had undergone male to female gender reassignment. The House of Lords issued a declaration of incompatibility. Ultimately, Parliament enacted legislation for civil partnerships and, later, same sex marriage.
Overall, the judiciary has been very careful in its interpretations of legislation.
D] The HRA 98 goes far beyond the UK's obligations under the Convention
The document states, quite correctly, that the E Conv HR does not specify any method by which States must implement human rights. The convention merely requires States to secure the rights to everyone in their jurisdiction. The HRA 98 mechanism is one way of securing rights but does not have to be the only way. The Council of Europe operates vis-a-vis UK on the international law level. Hence, it may be quite possible for any future government to implement an alternative scheme for rights protection. This is actually why, in my view, it will be unlikely that a future government would have to exercise the withdrawal threat. Provided rights were effectively secured (i.e. rights as interpreted by the E Ct HR) then the Council of Europe would not be alarmed !
The E Conv does not require Strasbourg rulings to be directly binding on domestic courts and the HRA 98 does not say that they are. Judges must take into account the decisions. Naturally enough, unless Parliament has enacted otherwise, the judges will tend to follow a consistent line of E Ct HR decisions but, as already mentioned, they have asserted their right not to do so.
The Conservative plan sets out to ensure that the E Ct HR is no longer binding on the UK Supreme Court. However, it is not binding now. The Supreme Court takes into account rulings of the E Ct HR but is NOT bound to follow them.
The plan also states that the E Ct HR will no longer be able to order a change in UK law and judgments will be treated as advisory only. In fact, the E Ct HR does not order changes to law in the UK. If the E Ct HR issues a judgment against the UK, the UK is bound by that judgment. because of Article 46 of the E Conv HR. Hence, on the international law level, E Ct HR judgments against the UK will not become "advisory." Any enforcement is a matter for the Council of Europe's Committee of Ministers.
There are 9 points to the plan:
1] Repeal the HRA 98.
Parliament may do this. It would be replaced by a Bill of Rights and Responsibilities. A draft Bill will be published in the near future. No doubt, the Conservative Party will have obtained legal advice in its drafting.
2] Put the text of the original human rights convention into primary legislation
This is not good enough because the original convention has been amended by protocols. Are those to be ignored? Here, the Conservative Party seem to be taking a regressive stance to human rights and the clock cannot be turned back to the world of 1953. Ignoring the protocols would inevitably place the UK in breach of the convention.
3] Clarify Convention rights to reflect a proper balance between rights and responsibilities
One example in the document relates to deportation where there is a "real risk" of torture and suggests that this balance might be altered. It is not clear what they propose but altering this test seems very likely to place the UK in breach of the E Conv HR.
Another example is the foreign national who has killed. (It is not said how: murder, manslaughter, causing death by dangerous / careless / inconsiderate driving etc). He will not be allowed to plead Article 8 (Respect for Family Life) in order to prevent deportation. The E Conv HR is clear. The rights, including Article 8, apply to everyone in the jurisdiction. Again, a clear course of conflict is built into the Conservative proposals.
Some terms - e.g. degrading treatment and punishment" will be clarified. This undoubtedly means toughening up! Ultimately, the precise E Conv HR meaning of those expressions will be determined by the E Ct HR. Thus, further conflict with E Ct Hr is likely.
4] Break the formal link between British courts and the E Ct HR
This involves removing the requirement in the HRA 98 to "take into account" decisions of the E Ct HR. Nothing in the proposals would seem to prevent judges from taking them into account in practice.
5] End the ability of the E Ct HR to force the UK to change the law:
The E Ct HR does not have this ability. Enforcement of judgments is for the Council of Europe's Committee of Ministers. The Council is unlikely to accept change here.
The Conservative idea is to treat as advisory any E Ct HR judgments saying that UK law is incompatible with the E Conv HR. The judgment will bind UK courts only if Parliament - using a new (yet to be revealed) procedure - decides that it will be binding. This could be an interesting development and details remain to be seen. The HRA 98 does not require Parliament to do anything at all about such judgments and so, for the first time, Parliament will be required to confront the judgments.
Thus, as in prisoner voting, we could end up with the E Ct HR saying that something is incompatible but Parliament saying that the decision does not bind UK courts even though, in international law, it binds the UK. As Kenneth Clarke (the former Secretary of State for Justice) points out (The Guardian 3rd October), it is highly questionable whether the UK can pick and choose in this way.
6] Prevent out laws being re-written through "interpretation"
This refers to removal of the requirement in the HRA 98 to read legislation - so far as it is possible to do so - in a convention compliant way. It would mark a return to the old days of strict application of statutes even if they are clearly not compatible with the E Conv HR. The result could be more litigants travelling to Strasbourg and more possibility of embarrassment for the UK on the international level.
7] Limit the use of human rights laws to the most serious cases
The obvious question is what are the most serious of cases. The proposal refers to criminal law, liberty of individuals, right to property and similar serious matters. Yet again, there is major potential here for the State to simply ignore human rights and to thereby come into conflict with the E Conv. To disapply Convention rights in what are seen as trivial cases would seriously undermine the whole convention system and for this reason would not find favour with the E Ct HR.
8] Limit the reach of human rights cases to the UK
Here is a clear attempt to prevent any action based on human rights in those cases involving military operations abroad. (Jurisdiction is in any event limited to cases where, for example, the UK military are in control as they are in a prison). Whether the proposal goes beyond military matters remains to be seen. Nothing is said about possible actions based on common law principles such as negligence and such actions can be brought for matters such as provision of inadequate equipment.
9] Amend the Ministerial Code to remove any ambiguity in the current rules about duty of Ministers to follow the will of the UK Parliament.
Detail is awaited here but it would be regrettable if Ministers were under no obligation at all to consider human rights matters given that the E Conv HR binds the UK government in international law.
a) The HRA 98 places a duty on Public Authorities (e.g. the courts, the Police etc) to apply convention rights. Repealing the HRA 98 without replacement would result in this essential statutory duty disappearing. The Conservative Party paper is silent about this. Will it come back in any Bill of Rights and Responsibilities. We do not know.
b) It is the HRA 98 which permits the courts to make Declarations of incompatibility. In turn, this enables Ministers - (if they so wish) - to use a fast-track remedial order procedure to amend domestic law. Simply repealing the HRA 98 would remove this important human rights safeguard.
c) Statements of Compatibility - the HRA 98 section 19 requires the Minister in charge of a bill to
- make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or
- make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.
This provision clearly requires Ministers to address the human rights issues in any bill they present to Parliament. Mere repeal of the HRA 98 would lose this important duty placed by Parliament on Ministers.
On any reasonable view, the Conservative Party plans represent a diminution of human rights protection in the UK. Furthermore, the UK would end up in breach of the Convention on more occasions in the event that cases reach the E Ct HR. Legal aid may play an important role here and much of it has been curtailed.
The promised draft Bill will reveal more but, as things stand, the proposals offer the citizen little more than a minimalistic, token gesture toward protection of rights. I urge responsible politicians to think again.
The European Convention on Human Rights and its Protocols
Human Rights Act 1998
Conservative Party - "Protecting human rights in the UK"
For a post that is essentially in favour of the Conservative Party plans see Spiked 6th October - Jon Holbrook - Two cheers for the Tory war on human rights
The following posts are critical of the proposals.
Post on Law and Lawyers - Human Rights protection in Britain - 10 key points
Democratic Audit - "An opportunistic piece of electioneering": experts criticise the Conservatives' Human Rights Act repeal pledge - views here of Professor Gavin Phillipson (University of Durham Law School); Claire Overman (Oxford Human Rights Hub blog); Conor Gearty (Professor of Human Rights Law at LSE) and David Mead (Professor of UK Human Rights law University of East Anglia)
EJIL: Talk! 7th October - The Tories and the ECHR: Mere incompetence or deliberate deception
Head of Legal blog - Full of sound and fury on human rights
Jack of Kent - What to read on the Tory proposals for a "Bill of Rights"
Justice Gap - Which of these rights would you wish to discard?
Labour Press - Views of Tim Own QC and Alex Bailin QC on the Conservative proposals
Lallands Peat Worrier 7th October - Utter scumbags
Left foot forward - The biggest threat to our human rights comes not from European judges in Strasbourg but from the Conservative Party
Liberty80 - Legally illiterate
Public Law for Everyone - Dr Mark Elliott - My analysis of the Conservative Party's proposals for a British Bill of Rights
UK Human Rights blog- Incoherent, incomplete and disrespectful: The Conservative plans for human rights - Angela Patrick
Aileen McHarg on UK Human Rights blog and Lallands Peat Worrier 4th October - Devolution: Grayling's human rights petard.
Head of Legal blog - Full of sound and fury on human rights
Daily Mirror - It helps us every day but what has the Human Rights Act done for you?
The Guardian 3rd October -The European court of human rights judgments that transformed British law
The Guardian 3rd October - Scrapping human rights law is an act of displaced fury
The Guardian 3rd October - Joshua Rozenberg - Tory plan for European human rights convention will take the UK back 50 years
The Independent 3rd October - Views of Dominic Grieve QC
Update 9th October:
Head of Legal blog (Carl Gardner) - Martin Howe QC: Tories will pull out of the ECHR unless Strasbourg okays our plan
British Institute of Human Rights - Making Human Rights Happen!
Update 13th October:
Halsbury's Law Exchange - Stephen Hockman QC - Conservative's new proposals on human rights: a case for change?
Update 16th October:
Francis Fitzgibbon QC - London Review of Books - Short cuts
Update 4th November:
Head of Legal blog 29th October - Dinah Rose QC: the Conservative human rights paper is "just so rubbish"