As a Conservative who believes that my party is mistaken in its current approach to human rights, I welcome the pause for consultation in developing policy on the Human Rights Act and the European Convention on Human Rights that was announced in the Queen’s Speech in May.
It is now almost a year since the Conservative Party published proposals for changing Britain’s human rights laws, a project rather euphemistically entitled “Protecting Human Rights in the United Kingdom.” The paper that was produced proposed repealing the Human Rights Act and replacing it with a Bill of Rights that would incorporate the text of the convention, because, it said, “the UK stands by the commitments made when we signed the convention.” But at the same time as it emphasised that the rights enshrined in the convention were “inalienable,” it also argued that they should be in some way a little alienated and reduced in the Bill of Rights. It identified as its targets restrictions on deportation under Article 8 (the right to a private and family life) and under Article 3 (protection from the risk of torture and inhuman and degrading treatment). It also said that the right of individuals to invoke human rights in court should be “limited to the most serious cases” and that parliament, not the courts, should define what these are.
Most importantly, the paper then argued that, having made all these changes, the UK should seek a special status within the Council of Europe. This would allow it to remain a signatory to the convention while enjoying the privilege of treating the judgements of the European Court of Human Rights in Strasbourg as merely advisory. In the meantime, it left unresolved the question whether or not the UK would breach its international obligations by failing to implement those judgements. A sub-paragraph in the paper called for changes to the ministerial code which currently prohibits ministers from acting contrary to the UK’s international legal obligations, and this could be seen as an essential enabling step to breaking the convention.
Since the paper was published, however, there appears to have been some change of tone. A draft bill promised for 2015 never saw the light of day—reportedly because it was so flawed as to be unpublishable. The Conservatives’ general election manifesto, while repeating the intention to scrap the Human Rights Act, was opaque on the details. After the government initially promised, following the election, that legislation would come in the first 100 days of the new administration, the matter has now been put off until a “consultation document” is produced in the autumn. The Prime Minister has twice indicated in parliament that he does not wish the UK to do anything incompatible with its membership of the Council of Europe, although that is the inevitable consequence if we were no longer to comply with our convention obligations. But he has also implicitly threatened to leave the Council if the UK does not get what it wants. Most recently, Michael Gove, the Justice Secretary, said that he hoped we would remain a signatory to the convention, while not being able to give a “100 per cent guarantee.” He argued that human rights could exist in Britain without recourse to the convention at all.
This ambivalence does not come as a surprise. Hostility to the Human Rights Act has been present in sections of the Conservative Party since its enactment, and this has grown more strident with the passage of time, encouraged by some sections of the press. But it has now run into the difficult question of how, in practice, any change can be implemented without serious damage to our national interest and our international reputation.
Criticisms of the operation of the convention and the judgements of the Strasbourg court are not groundless, nor are they confined to politicians. Distinguished jurists—including Leonard Hoffman, Mary Arden, Igor Judge and Jonathan Sumption—have argued that the Strasbourg court has sometimes failed to respect permissible national differences in its interpretation of the convention. They have also charged that it has failed to appreciate sufficiently the practical limits to its authority if it gives judgements which contradict settled democratic will in areas where a “margin of appreciation”—an allowance for differences in interpretation—might reasonably be considered to apply. The problem caused by the court’s decision on prisoner voting is a good illustration of this. In February 2015, the court ruled for the fourth time against the UK’s ban on convicted prisoners having the vote, but the government has yet to change the legislation.
"In a number of key cases involving this country, the court has made adverse findings which a vast majority would now conclude are correct"Much of the problem stems from the Strasbourg court’s transformation from an international tribunal dealing with a limited number of cases into a final court of appeal for some 700m people—the combined population of the 47 member states of the Council of Europe. This has tended to make it too micro-managing, as it grapples with a substantial backlog of cases and instances of egregious failures to respect basic human rights in some member states whose domestic justice systems are wanting.
But this cannot detract from the fact that, in a number of key cases involving this country, the court has made adverse findings which a vast majority would now conclude are correct. In 2008, for instance, the court held that UK policy in England and Wales to retain indefinitely the DNA and fingerprint profiles of acquitted individuals (the only jurisdiction in Europe to do this) was unjustified. And no one today would think of reopening the court’s 1981 decision that the criminalisation of homosexual acts in private in Northern Ireland was wrong, despite it being very controversial at the time.
Read more on the Human Rights Act:
Why the Conservatives are wrong about Human Rights
A British Bill of Rights is a good idea
Should we scrap the Human Rights Act?
Furthermore, there is clear evidence that some of the problems besetting the court are being addressed. In 2012 Kenneth Clarke, then Lord Chancellor, and I negotiated the “Brighton Declaration” which sought to deal with the quality of judicial appointments and the backlog of cases, to reduce the time limit for claims and tighten admissibility criteria. Most importantly, the declaration inserted the principles of “subsidiarity” and the “margin of appreciation” into the preamble to the convention so as to steer the court away from the type of decision we saw on prisoner voting. There are early signs that this reform package is working. The backlog of cases is down and the overwhelming majority of the cases brought against the UK in 2013 were struck out as inadmissible. Judgements are being implemented more quickly. The recent judgement of the Strasbourg court on Britain’s domestic ban on political advertising and its potential infringement of Article 10 of the convention on freedom of expression showed it upholding our own court’s view that it was a settled, democratically approved and permissible national practice.
This has also been accompanied by an important shift by our own national courts away from an approach which defined the requirement, in Clause 2 of the Human Rights Act, to “take account” of Strasbourg decisions as meaning to closely mirror them. This has initiated a dialogue in which, in a number of cases, our own courts have rejected Strasbourg case law and had this rejection accepted by the Strasbourg court when reviewed. Proactiveness by our own judges has paid dividends. The relationship between Strasbourg and our own courts seems to now be on a much better footing.
It is difficult, therefore, to see what the new Bill of Rights is supposed to achieve. The Prime Minister speaks of a desire that “more of these judgements are made by British judges in British courts,” but that is exactly where the overwhelming majority are being made. As the stated intention is to put the text of the convention in any Bill of Rights, there is no reason to suppose that judicial interpretation will be any different from what it is at present with the Human Rights Act—even if, as suggested, the “take account” clause in the Human Rights Act is altered or removed. Another idea is that our judges should have to declare the incompatibility of the convention with existing primary legislation more frequently, rather than re-interpreting existing statute law to fit convention rights. This might oblige parliament to be more involved, but it will make implementing convention rights, which the government says it supports, much more unwieldy. Some change might also be achieved by inserting interpretative clauses emphasising that, where rights are qualified and can be justifiably restricted, special weight should be placed on one qualified right in balancing it against another, as was already done in the Human Rights Act in emphasising the importance of freedom of expression and of thought, conscience and religion in Articles 9 and 10 of the convention. Such a gloss may be acceptable, but is likely to make only a marginal difference to interpretation. Nor does it really require changes to the Human Rights Act itself. In 2014, for example, parliament legislated in the Immigration Act to require deportation for prisoners sentenced to over four years in prison unless there are very compelling circumstances over and above the cultural and family relationship ties that are set out for foreign criminals sentenced to a lesser period of imprisonment. This is intended to be compatible with the convention rights. If it works, no change to the Human Rights Act will be needed on this particular issue at all.
The one justification that might exist for a Bill of Rights would be if the government wished to create or entrench rights on which the convention is silent, or to do this as part of a written constitution. In the past there has been debate as to whether or not traditional rights such as that to trial by jury might be protected or if a Bill of Rights should extend into areas of social and economic policy. But this has always been controversial territory and there is nothing to suggest that the government wishes to pursue this.
The government’s real problem is that some of its concerns can only be met by a Bill of Rights that is incompatible with our adherence to the convention. This is shown starkly, for example, by the wish to reinterpret Article 3 on the duty to protect from the risk of torture and to substitute a new unspecified test for that of “a real risk” which currently exists in deportation and extradition cases— a test which, we are assured, will be in line with the government’s “commitment to prevent torture and in keeping with the approach of other developed nations.”
At present 47 of those nations accept the current interpretation of the Strasbourg court. Even the United States, which does not, is fettered, as we are, in its discretion to deport by the United Nations convention against torture. So either this change will be of no effect, or, if significant, it will undermine one of the key principles of both the convention and wider international law. The same criticism can be made of the intention that parliament will determine a threshold below which convention rights will not be engaged. Such an exercise is likely to prove to be as difficult to carry out as it will be fruitless. It will still be subject to judicial interpretation and will add to, rather than reduce, litigation.
Such changes will also seriously disrupt the devolution settlements. At present, the existing convention rights underpin the powers devolved to Scotland, Northern Ireland and Wales and govern all their actions. Westminster could legislate to change the position, but the evidence is that this would be against the wishes of the devolved administrations. In the case of Northern Ireland, they are also part of the Belfast Agreement, an international treaty involving the Republic of Ireland. At a time when the future of the UK is in question and the peace settlement in Northern Ireland is still fragile, it opens the prospect of a new area of political discord. Remarkably, one suggestion for getting round this problem has been that the government should legislate for England only, thus creating two different systems of rights in one country. For a unionist party this seems a very strange thing to do.
Adherence to the principles of the convention is also explicit in our membership of the European Union. At present the European Court of Justice (ECJ) in Luxembourg is confined to applying the convention to matters within EU competence only. But it has been notably expansive in this respect and it has properly been a goal of UK government policy to try to limit this trend. But one can think of little that is more likely to accelerate it than claims being brought to the ECJ by persons who consider that they are being denied access to convention rights and cannot get redress domestically, or through the Strasbourg court. The likely consequence is that the ECJ will expand its jurisprudence to give redress and that the judgements, unlike those from Strasbourg, will then have direct effect here by virtue of the EU treaties. Such an outcome would be far more challenging for the government than anything so far faced.
"The government’s current stance on the convention has already encouraged Russia to procrastinate on the implementation of judgements"But the most difficult issue of all flowing from the incompatibility of a Bill of Rights with the convention will be the impact on the operation of the convention itself. It has been a central policy aim of successive UK governments, including the present one, to promote human rights globally, and we have long been recognised as a leader in this area, for instance in relation to the use of rape in war. As an international treaty, the convention depends on peer group pressure amongst its adherents to promote respect for it and to help ensure implementation of its judgements. So the departure of one of its principal creators will damage it severely.
Contrary to the myth that the UK respects decisions of the Strasbourg court but many other adherent states do not, the convention and Strasbourg court judgements have proved a highly effective tool in protecting and developing human rights in countries with no tradition of the rule of law. In countries such as Georgia, Ukraine and Romania, its beneficial impact can be seen in a range of issues from the treatment of those with learning disabilities or differing sexual orientation to prison conditions. But the government’s current stance on the convention has already encouraged Russia to procrastinate on the implementation of judgements, while outside Europe, the President of Kenya invoked the UK’s stance when trying to defy the International Criminal Court.
In a mature democracy any proposed policy should be subjected to a close analysis of its likely benefits and costs. The evidence is clear that leaving the convention would result in a serious reputational cost for us and would severely damage an institution that, for all its faults, has been the most effective tool for promoting human rights in history. By contrast, the benefits of the proposed Bill of Rights are either unclear or insignificant, even when viewed from the position of its promoters. This constitutes the strongest argument for thinking again.
