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ANALYSIS: On Friday the Conservative Party announced its proposals for reform of human rights law, delivering on the party’s longstanding promise to repeal the Human Rights Act and replace it with a British Bill of Rights and Responsibilities.
The Secretary of State for Justice, Chris Grayling, said that the Bill of Rights would ‘leave the European Court of Human Rights as only an advisory body in the UK’, with the Supreme Court making final verdicts in human rights cases and Parliament having the final word on human rights laws.
This is not a new policy for the Conservatives: in 2010, the party’s manifesto included a pledge to replace the Human Rights Act with a UK Bill of Rights in order to ‘protect our freedoms from state encroachment and encourage greater social responsibility’. However, this ambition was stymied by the Liberal Democrats’ refusal to countenance repeal of the Act.
The impasse between the coalition partners led to the establishment in March 2011 of the Commission on a Bill of Rights, formed of legal experts tasked with a mandate to ‘investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties’.
The Commission published its report in December 2012, with the majority concluding that there is ‘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’.
Until this week, the issue of human rights reform had been largely consigned to the Parliamentary long grass following the Commission’s report. Chris Grayling and the Conservative Party have now dramatically resurrected the debate.
Human rights in the UK – from 1950 to the present day
The European Convention on Human Rights and Fundamental Freedoms (ECHR) was signed in Rome in 1950 in the aftermath of the Second World War. The UK was instrumental in the crafting of the Convention: Sir David Maxwell-Fyfe, a Conservative politician, lawyer and judge, oversaw the drafting process.
In May 1948, Winston Churchill had addressed the Congress of Europe in The Hague, proclaiming a ‘movement for European unity’, in the centre of which ‘stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law’. Soon afterwards, Britain was a founding signatory to the ECHR and in March 1951 became the first nation to ratify the treaty, which came into force in 1953.
In 1998, the Human Rights Act (HRA) was passed by the Labour government with the intention of ‘bringing rights home’; that is, in order to enable people in the UK to enforce the rights enshrined in the ECHR in the domestic courts, rather than being required to exhaust domestic remedies before taking their complaint to the European Court of Human Rights in Strasbourg.
Since the Act came into force in 2000, the government and other public authorities have been subject to a domestic law obligation under section 6 to act compatibly with ECHR rights, and British courts have been required by virtue of section 2 to ‘take into account’ judgments of the European Court of Human Rights when adjudicating on ECHR rights.
Further, where a higher court finds that legislation is fundamentally incompatible with an ECHR right, it may make a ‘declaration of incompatibility’ under section 4. A declaration of incompatibility does not affect the validity or continuing operation of legislation, but does trigger a requirement for Parliament to consider whether to amend the legislation in question.
In practice, on the rare occasions it has been notified of declarations of incompatibility (19 final declarations were made by courts between October 2000 and July 2013), Parliament has – so far without fail – taken remedial action to resolve the incompatibility.
The Conservatives’ proposals
The blueprint published by Chris Grayling states that, if the Conservatives form a majority government after the 2015 general election, the key objectives of their Bill of Rights will be to repeal the Human Rights Act, incorporate the ECHR into domestic legislation and clarify the rights it contains ‘to reflect a proper balance between rights and responsibilities’.
The Prime Minister’s conference speech had provided a portent of the specific proposals to follow, with David Cameron announcing to his assembled party faithful that a Conservative government will introduce ‘a new British Bill of Rights to be passed in our Parliament, rooted in our values’.
In terms of how the prospective Bill of Rights would differ from the Human Rights Act, the Conservatives say that the European Court of Human Rights will become ‘an advisory body only’ which is ‘no longer binding over the UK Supreme Court’ and ‘no longer able to order a change in UK law’.
The published proposals also state that use of human rights laws will be limited to ‘the most serious cases’, with a ‘threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases’. It is therefore clear that the Conservatives intend to weaken, rather than strengthen, human rights protection in the UK. A draft Bill of Rights will be published by the Conservatives for consultation this year.
Reaction to the Conservatives’ proposals for human rights reform has, it is fair to say, been varied.
‘End this human rights madness’
The Daily Mail headline proclaimed ‘End of human rights farce’, reporting ‘a triumphant week for British values’ as the Conservatives promise to ‘reinstate parliamentary sovereignty’ and ‘ignore verdicts by European judges it does not agree with’.
The Express opted for ‘Human rights madness to end’, the Sun (£) said the Conservatives aim to put the ‘hated’ Human Rights Act ‘in the dustbin of history’ and ‘end Euro law madness’, while towards the other end of the political spectrum the Daily Mirror lamented the ‘grim company’ the UK will be keeping if it withdraws from the ECHR. The Mirror also produced this Venn diagram showing the position the UK will be in if it renounces the ECHR.
The broadsheet coverage was, predictably, a little more measured. In its editorial, The Times (£) considered that the Conservatives are ‘right to propose reform’ of Parliament’s relationship with the European Court of Human Rights, while the Guardian expressed its view that the Human Rights Act ‘should be defended and not repealed’.
The Telegraph front page proclaimed ‘A new British Bill of Rights’ which ‘should be welcomed’ as the ECHR ‘has been transmuted into a weapon of judicial activism’. However, Alex Massie in the Spectator defended the ECHR and Human Rights Act, while describing the ‘oafish’ Chris Grayling as ‘a walking, talking advertisement for a Labour government’.
Legal commentator Joshua Rozenberg said the plans are ‘legally coherent’ but ‘would take the UK back half a century to the days before the convention became enforceable by individuals’. Telegraph columnist Peter Oborne reflected that the Conservatives have taken a small but significant step ‘towards joining the Chinese, Russian and Saudi Arabian regimes as a diehard opponent of the rule of law’.
Us and Belarus
Labour Shadow Justice Secretary Sadiq Khan said that leaving the ECHR ‘would be a disaster for this country – putting Britain in the same bracket as Belarus, Europe’s last remaining dictatorship’. Mr Khan accused the Prime Minister of ‘pandering to UKIP instead of standing up for the rights and best interests of the people of Britain’.
The Liberal Democrat deputy leader and Justice Minister, Simon Hughes, gave short shrift to the proposals by his superior in the Ministry of Justice: ‘These plans make no sense – you can’t protect the human rights of Brits and pull out of the system that protects them.’ Defending the ECHR, Hughes said that ‘Europe’s human rights laws were designed by British lawyers to reflect British values of justice, tolerance and decency’.
Hughes’ colleague, secretary of state for business Vince Cable, described the plans as ‘a very retrograde step’, asserting the value of human rights and ‘a system of law in which judges rather than politicians make the final decisions’.
Conservative justice minister, Lord Faulks, defended the UK’s ‘very proud history of protecting human rights’ and said that although ECHR rights would be replicated in the Bill of Rights, the Conservatives ‘are reasserting the sovereignty of Parliament’.
However, Dominic Grieve QC, Attorney-General until the cabinet reshuffle in July 2014, derided his party’s proposals as ‘unworkable’ and ‘almost puerile’. Further criticism came from another prominent former Conservative cabinet member and QC, Ken Clarke, who found himself ‘rather bewildered’ by the plan announced by his successor as Secretary of State for Justice.
Concern has also been expressed at the impact of the proposals on the devolved legislatures of Scotland, Wales and Northern Ireland. The Scottish government is ‘strongly opposed’ to the idea, which may also be incompatible with the 1998 Good Friday Agreement between the UK, Northern Ireland and the Republic of Ireland.
The director of Liberty, Shami Chakrabarti, argued that the proposed Bill of Rights ‘would diminish everyone’s freedoms and make government even less accountable’. Amnesty International’s UK legal adviser Rachel Logan described it as ‘a shame that scaremongering and untruths surrounding the Human Rights Act have tarnished what is an essential piece of law for protecting and defending all of our rights’.
Andrea Coomber, the director of JUSTICE, insisted that if ‘the rule of law is tempered by the popular majority, it becomes no real rule at all. Talk about this kind of British Bill of Rights might be good politics, but it’s unnecessary and dangerous for our constitution’.
These concerns were echoed by Human Rights Watch, which described repeal of the Human Rights Act and withdrawal from the ECHR as ‘an extreme and reckless step, weakening rights protections for everyone in the UK’.
The reaction of the legal profession has not been any more positive. Barrister and founder of the UK Human Rights Blog Adam Wagner said legislation to render European Court of Human Rights judgments merely advisory would be ‘incoherent at best and anarchic at worst’.
The prominent legal blogger and former government lawyer Carl Gardner offered a detailed analysis of the Conservatives’ plan, concluding that although it would involve ‘substantial amendment’ to human rights law, in reality it is ‘full of sound and fury’ and perhaps not as significant as Chris Grayling would like us to believe.
Geoffrey Robertson QC, the founder of leading human rights set Doughty Street Chambers, perhaps encapsulated the opinion of many in the legal profession when he reportedly told Newsnight that Chris Grayling is ‘widely despised, no more than a constitutional vandal’.
This widespread opposition to the proposals should not be taken as an indication that the legal community is unanimously opposed to reform of human rights law. Indeed, the former Lord Chief Justice, Lord Judge, recently argued that ‘it would be a negation of the democratic process for Members of Parliament to be obliged to vote for a measure with which they disagree” and censured the European Court for its “dramatic and unconstitutional extension of judicial authority’.
The current President of the Supreme Court, Lord Neuberger, recently described the Human Rights Act as ‘a breath of fresh air’, while acknowledging that judges may, at times, have been “too ready” to treat Strasbourg jurisprudence as binding on domestic courts.
Perhaps the most frequently quoted defence of the ECHR and Human Rights Act was made by another former Lord Chief Justice, the late Lord Bingham:
‘Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary?’
Lord Bingham contended that human rights were ‘protected for the benefit above all of society’s outcasts, those who need legal protection because they have no other voice.’
And the final word to the Council of Europe, the international organisation founded in 1949 to supervise compliance with the ECHR, which said the Conservatives’ proposals are “not consistent” with the ECHR.
The Council of Europe said it is ‘inconceivable that the UK as a human rights leader and founding country of this organisation would leave’. If the Conservative Party forms a majority government after the general election next year, that possibility might not seem so implausible.