Thursday, 2 October 2014

David Cameron's speech ~ the "European" dimension

On 1st October, Prime Minister David Cameron delivered his speech at the Conservative Party conference in Birmingham.  As expected, the speech ranged over the whole gamut of government policy and contained a number of "promises" which may be delivered during the next Parliament if there is a Conservative majority government.   Cameron was clear enough in saying that much will depend on deficit reduction and it was plain that further spending reductions will be required.  Cameron referred to cuts of some £25 billion in the next two years.  The criminal justice system and other legal areas will undoubtedly have to carry their share of this.  See FULL text of speech.

As widely expected in legal circles, the speech contained headline statements about the European Union (EU) and the European Court of Human Rights (E Ct HR).

On the EU, Cameron stated that he would renegotiate Britain's position and, in particular, he would address the issue of free movement of workers.  He said:

" ... we’re going to go in as a country, get our powers back, fight for our national interest …… and yes – we’ll put it to a referendum …… in or out – it will be your choice…"

Cameron then turned his guns on the E Ct HR saying:

"Of course, it’s not just the European Union that needs sorting out – it’s the European Court of Human Rights.  When that charter was written, in the aftermath of the Second World War, it set out the basic rights we should respect.  But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong.  Rulings to stop us deporting suspected terrorists.  The suggestion that you’ve got to apply the human rights convention even on the battle-fields of Helmand.  And now – they want to give prisoners the vote.  I’m sorry, I just don’t agree.

Our Parliament – the British Parliament – decided they shouldn’t have that right.  This is the country that wrote Magna Carta ... the country that time and again has stood up for human rights … whether liberating Europe from fascism or leading the charge today against sexual violence in war.

Let me put this very clearly.  We do not require instruction on this from judges in Strasbourg.  So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights… to be passed in our Parliament ... rooted in our values ... and as for Labour’s Human Rights Act?  We will scrap it, once and for all."

Let us look at both the E Ct HR and (more briefly) the EU aspects of Cameron's speech.

: The European Convention and the Court :

Withdrawal from the Convention?

IT may prove to be significant that Cameron did NOT say that the UK would actually withdraw from the European Convention on Human Rights (E Conv HR).  Such a course would almost certainly require the UK to leave both the EU and the Council of Europe.  As an international defender of human rights - (a point made by Cameron in his speech) - the UK government would be very unlikely to adopt such a course.

If the UK remains a State party to the E Conv HR then the Convention would continue to be binding in international law on the UK as a State.  As required by Art 46(1) of the European Convention on Human Rights the UK would be required to "abide by" final judgments of the E Ct HR in cases where the UK was a party.

Article 46(1) reads - The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.   (Note: judgments of the E Ct HR become 'final' in the the circumstances provided for by Articles 42 and 44).

Article 46(1) could be read as meaning in the actual case and only in that case.  Such a reading is not sustainable today since UK practice over the last 60 years has generally been to amend domestic law so as to come into line with the court's ruling.  Numerous examples of the UK doing this could be given though votes for prisoners stands as an exception.

Remaining in the Convention but a new relationship with the court

1. Misrepresentations 

Politicians and the media misrepresenting decisions of the E Ct HR has sadly become a feature in recent years.  On this, see the post by Adam Wagner - UK Human Rights Blog 22nd September 2014 - The Monstering of Human Rights

a) Prisoners and Voting -

The court has never said that ALL prisoners must be granted a vote and the court has found schemes such as that in Italy (in some ways more draconian that the UK system) to be compatible with protocol 1 article 3 - see Scoppola v Italy discussed on this blog 22nd May 2012.  In Scoppola the E Ct HR made it clear that general, automatic and indiscriminate disenfranchisement of prisoners is incompatible with Protocol 1 Article 3 (Right to free elections).  The court also stated that each State has a wide discretion as to how it regulates the ban - both as regards the types of offence that should result in the loss of the vote and as to whether disenfranchisement should be ordered by a judge in an individual case or should result from general application of a law.

b) Immigration -

Article 8 (Right to respect for family life) of the E Conv HR is clearly invoked in cases where the State seeks to deport an individual who has family in the UK.  However, Article 8 is not an absolute right operating like a trump card.  The law is complex and the matter is discussed in detail in this House of Commons Library Standard Note 18th October 2013 - Article 8 of the ECHR and immingration cases

c) The battlefield?  

Here we enter into yet another difficult area.  It has been held that, in some situations, the E Conv HR applies outside the territory of a signature State - see, for example, Al-Skeini v UK (2011) 53 EHRR 589.  However, a clear link appears to be established in the case law between human rights obligations and ability to exercise effective control over territory abroad.  In October 2013, Policy Exchange published a paper entitled "The Fog of Law: An introduction to the legal erosion of British fighting power."    This paper was considered in a House of Lords Library Note dated 7th November 2013 - The Armed Forces and Legal Challenge.   Well worth reading for a deeper understanding of the position is Eurorights - Human Rights on the Battlefield.

Cases have also arisen where negligence (an English common law action in the law of tort) has been alleged on the part of the Ministry of Defence  in the procurement of suitable equipment.  See Smith v Ministry of Defence [2013] UKSC] 41 discussed on the UK Supreme Court blog.

d) Whole Life Terms for Murderers

Although not referred to by Cameron in his speech, the E Ct HR did not rule that whole life terms for murder could never be imposed.  The court required that there be a review mechanism so that, in suitable cases, the prisoner might be released on licence albeit after serving a lengthy time in prison.  It has been held by the Court of Appeal (Criminal Division) that the mechanism in the Crime (Sentences) Act 1997 s.30 suffices - R v McLoughlin [2014] EWCA Crim 188. 

2.  Cameron's way

Cameron's preferred route is to repeal (his word was 'scrap') the Human Rights Act 1998 and to have a British Bill of Rights to be "passed in our Parliament…rooted in our values."

3.  Repeal of the HRA

If the HRA were to be repealed what would be lost and what would the position be?  The HRA has sought to carefully balance the principle of Parliamentary sovereignty with convention rights.

The HRA s.3 imposes an obligation - so far as it is possible to do so - on the courts to read and give effect to legislation in a way which is compatible with the Convention rights.  If that is not possible, the court may issue a "declaration of incompatibility"  BUT the law as laid down by Parliament continues to apply unless and until Parliament amends the law.  The HRA provides a fast-track process for amendment which Ministers may use but do not have to use. 

Next, the HRA makes it unlawful for a public authority to act in a way which is incompatible with a Convention right though it will not be unlawful if as the result of one or more provisions of primary legislation, the authority could not have acted differently.  Here, the HRA has woven convention rights into administration of the law by the many public authorities in the UK.  The HRA goes further in permitting the "victim" of unlawful action by a public authority to take proceedings in the court and it is possible to obtain an appropriate remedy since the court may "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."

Simple repeal of the HRA would remove the statutory obligation on courts to read legislation compatibly (as far as possible) and the important obligation on public bodies to operate compatibly with convention rights.

4.  A British Bill of Rights

The possibility of a British Bill of Rights was examined at some length by a Commission which reported in December 2012 - see Ministry of Justice - Commission on a British Bill of Rights and here is a link to the full report of the Commission.  Seven of the Commission's nine members believed that, on balance, there was a strong argument in favour of a UK Bill of Rights on the basis that such a Bill would incorporate and build on all of the UK's obligations under the European Convention on Human Rights, and that it would provide no less protection than is contained in the current Human Rights Act and the devolution settlements.

The extent to which any British Bill of Rights would follow the Commission's thoughts remains to be seen.  A key point made by the Commission was that the mechanisms by which any Bill of Rights should operate should be broadly similar to those in the Human Rights Act.

A particular concern for some is that a British Bill of Rights might be drafted in a minimalist way making it effectively unenforceable at law.  The Bill could be a mere aspirational statement of rights (and perhaps some responsibilities) but omitting to place any domestic legal obligation on government and other public bodies to actually apply the rights.  Such a situation would be regressive and highly undesirable from the viewpoint of the citizen trying to secure rights against the State.  More litigants would find themselves travelling to Strasbourg as occurred in the days before the HRA brought human rights home!

Writing on Public Law for Everyone - Mark Elliott comments - "One possibility, therefore, is that a British Bill of Rights would simply make it more difficult to enforce rights conferred by the Convention, by diluting domestic courts’ powers and thereby increasing the frequency with which cases would have to be litigated in Strasbourg. The upshot — given the difficulties, including financial ones, of taking cases to the European Court — is that for many people, Convention rights would become theoretical entitlements that would be practically impossible to enforce. If that is the sort of “bill of rights” that people really want, then so be it; but if that is what turns out to be on offer, it is imperative that everyone is clear about that."

We must now await the publication of the Conservative Party's detailed plans for such a British Bill of Rights.  The fact that the UK has devolved administrations may prove to be a problem for the establishment of a Bill applicable to the entire UK and some parts of the UK might well prefer to stay with the status quo.  In Northern Ireland there has been pressure to have a Northern Ireland Bill of Rights - such a Bill being referred to in the Good Friday agreement.

There is one certainty.  Given the "rights-scepticism" in the Conservative Party, it will be necessary to examine any of their proposals very carefully indeed.  At the moment, it seems almost certain that their proposals will seek to limit rights and their enforceability and thereby enhance the power of the executive at the expense of the general public.

: The European Union :


Although a member of (what is now) the EU since 1974, there is no doubt that the UK remains a sovereign State and could withdraw entirely.  The possibility of a member leaving is provided for in Article 50 of the Treaty on European Union. Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.  In the UK that would essentially mean an Act of the UK Parliament terminating membership.  However; given devolved administrations to Scotland, Wales and Northern Ireland; it would be necessary for the UK government to seek the agreement of the devolved administrations prior to embarking on this course.  Strictly speaking a referendum is not required by law but an in/out referendum has been unequivocally promised by Cameron should there be a majority Conservative government.  In the event of the UK deciding to withdraw,  exit would be managed in accordance with an agreement to be drawn up with the European Council - (see Article 50 TEU).

If UK left EU - what then?

It is unclear just what type of relationship would then exist with the EU.  One option might be some form of Association Agreement.  Such agreements have their legal basis in Article 217 of the Treaty on the Functioning of the EU (TFEU) and the many agreements entered into have taken a multiplicity of forms.   Article 217 TFEU states:

"The Union may conclude with one or more third countries or international organisations agreements
establishing an association involving reciprocal rights and obligations, common action and special

A further option might be on the lines of the relationship with the EU enjoyed by Norway.  This makes Norway part of the internal market through the European Economic Area (EEA) agreement.  For a Conservative government this could prove to be problematic due to free movement rights for persons.

Yet another option might be along the lines of Switzerland which has a free trade agreement with the EU though relations between Switzerland and the EU are particularly complex - see Switzerland-EU relations.

Remaining a member

Cameron placed some emphasis on renegotiation of the UK's relationship with the EU and it seems that a referendum will not be offered unless and until terms suitable to a Conservative government are agreed.  Hence, an "IN" decision at a referendum would endorse continuing membership based on the renegotiated terms.  At this stage it is not possible to say with confidence what might emerge from such negotiations and free movement of goods, persons, services and capital are key foundation stones of the EU structure.  Free movement of persons would appear to be a sticking point in the Conservative psyche and, for its part, the EU would wish to maintain free movement.

Clearly then, difficult major questions exist that will require answers in the coming few years!

Other links:

UK Human Rights Blog - 5 things we have learned from Cameron's human rights announcement

Head of Legal blog - What Cameron said about human rights today and what he might have said instead

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