Monday, 9 January 2017

Human Rights

As The Independent 29th December 2016 reports - Theresa May is planning to make leaving the European Convention on Human Rights ("the Convention") a central aspect of her 2020 election campaign.  She would reportedly plan to transfer the rights from the international body into British law, to be applied by the Supreme Court.  Mrs May will be looking for a solid mandate from the British public – and a stronger majority in Parliament – to proceed with the controversial process of leaving the Convention.

The international body
with responsibility for the Convention is the Council of Europe which was established by treaty in 1949.  The founding treaty permits a member to withdraw - Treaty Article 7.  The article states:  "Any member of the Council of Europe may withdraw by formally notifying the Secretary General of its intention to do so ....."

The Convention for the Protection of Human Rights and Fundamental Freedoms is a further treaty to which the UK is a party.  Article 58 of the Convention provides for denunciation by a member state.  "A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after 6 months notice in a notification addressed to the Secretary General of the Council of Europe ...."

Article 58 goes on to state that "Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this convention under the same conditions."

It is not fully clear whether a State could leave the Convention but remain in the Council of Europe.  The Council of Europe Treaty Article 3 requires members to accept the principles of the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms.  Under Article 8, a member which has "seriously violated" Article 3 can be suspended and asked to withdraw.

During the government's recent appeal to the Supreme Court in the Brexit litigation, Helen Mountfield QC made a point that if the government's case were correct about prerogative powers then it is "certainly arguable" that the executive could dispense with the Human Rights Act and the Convention Rights - see the Transcript at page 92.   Lack of time prevented this argument being fully developed at the oral hearing but the justices were given some written material about it.  The argument appears to be that section 21 of the Human Rights Act 1998 defines the word CONVENTION as - " ... the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom."  The words "as it has effect for the time being" would mean that if the executive withdrew the UK from the Convention then the convention would have no effect for the time being in relation to the UK and so the Human Rights Act would become ineffective.

Withdrawal from the Convention is likely to create problems for the British - Irish Agreement of 1998 which is a further international treaty.   The Convention is strongly woven into the arrangements put in place to bring about a reconciliation and peace in Northern Ireland.  Human rights protections were a core feature, not an ‘add on’, of the Peace Process and the negotiations around the Agreement.

The Prisoners' Voting Rights question remains unresolved - Parliament 15th February 2016

Concern has been expressed by the Parliamentary Joint Committee on Human Rights about the impact of Brexit on rights - see this post at Rights Information


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