Rights: whose final say?

Battle lines were drawn. Defence forces were on full alert. The Queen’s speech opening the new UK Parliament, delivered on 27 May, was to spark the fight for the future of the Human Rights Act, with the anticipated publication of the proposed British Bill of Rights, the replacement promised in the Conservative manifesto.

Only it didn’t happen. All that the speech contained was a commitment to “bring forward proposals” for the replacement. Word went round that ministers feared a backbench revolt sufficient to defeat the bill – which was not yet in publishable form in any event. Has the threat to our human rights regime therefore receded, as some commentators were quick to suggest?

Reports of the death of the pledge would be an exaggeration, as Mark Twain might have said. As the human rights blogger Adam Wagner has written, the Government has an able and committed ministerial team in place, and has five years in which to devise a strategy that will appease enough of its backbenchers: “So those who want to keep existing human rights protections will need to dig in.”

At time of writing, there has been little abatement of the flow of articles on the subject. For interested readers who have not followed the debate so closely, this contribution attempts to set out the main issues, and the options for change.

Devolution complexities

One point much discussed is the extent to which the UK’s devolution arrangements fetter the Government. It is the Convention rights, rather than the Human Rights Act, that the Scotland Act 1998 uses as a limiting factor on the powers of the Scottish Parliament, though public bodies in Scotland are separately subject to the duties set out in the former Act to comply with the Convention rights. The Scottish Government has been vocal in its opposition to any repeal of the Human Rights Act, but whether it can block it depends on the weight to be given to that peculiar British creation the constitutional convention, in this case the Sewel convention. Holyrood cannot modify the Human Rights Act; but human rights as a subject area is not a reserved matter, and in terms of the Sewel convention (which should become a statutory rule under the Smith Commission proposals), Westminster should not legislate on devolved matters without Holyrood’s consent. In short, this is a complex picture even without the significant political considerations.

If the Human Rights Act were repealed, it would be open to Holyrood to enact similar (or stronger) protections in relation to its devolved powers. Stronger protections could include, for example, current statements of economic, social and cultural rights aimed at advancing social justice and fairness. Does this mean that opposition to the repeal in Scotland is more sound and fury than anything?

Speaking to the Journal, Professor Alan Miller, chair of the Scottish Human Rights Commission, answers with an emphatic no. “The effect on Scotland throughout the everyday lives of people, as well as throughout the UK and around Europe and beyond, will be very real,” he asserts. “In the reserved areas, it would for example disable families of soldiers unnecessarily killed abroad because of a lack of protective equipment from suing the Ministry of Defence; it could prevent challenges being taken to unfair employment practices, or the collection of personal data; it would bar judicial review proceedings against social security legislation such as the ‘bedroom tax’; and it would mean fewer controls on the detention of those subject to immigration procedures.”

Also on devolution, in Northern Ireland human rights law is already one stage further entrenched: the Good Friday peace agreement, which was accompanied by a legally binding international treaty between the UK and the Irish Republic, required that Convention rights be written into domestic law in the province, “with direct access to the courts, and remedies for breach of the Convention”. This was also implemented via the Human Rights Act, and cannot be unilaterally rescinded.

Democratic deficit?

The reach of Convention jurisprudence, and the ability of foreign judges to thwart the will of the elected Parliament, is at the forefront of the abolitionists’ argument. The original ideals of the Convention have, it is alleged, been subverted by “mission creep”, through the spread of case law into areas not foreseen by the original framers and signatories, again due to judicial activism. Convicted criminals claim protections that appear to put their rights above those of their victims. And the Government is prevented from acting in the interests of national security, whether by monitoring communications for potential terrorist conspiracies or by the deportation of foreign nationals claiming the protection of our laws even while accused of fomenting acts of violence here or abroad.

Has interpretation of the Convention rights gone too far? It is not just certain politicians and journalists who think so; the case has been made by senior judicial figures such as Lord Sumption. In a lecture in 2013 he described the Human Rights Court as having become “the international flagbearer for judge-made fundamental law extending well beyond the text which it is charged with applying”. Holding itself entitled to treat the Convention as a “living instrument”, to be interpreted in the light of evolving social conceptions common to European democracies, it had “transformed the Convention from the safeguard against despotism which was intended by its draftsmen”, through the recognition of a large number of new rights not expressly to be found in its terms. This, he argued, goes well beyond the interpretative approach that is proper with treaties, even to recognising some rights that the signatories had decided not to grant; it is not easy to reconcile with the rule of law; and it gives rise to “a significant democratic deficit in some important areas of social policy”.

Professor Miller disputes the charge. “There are a couple of things here. For one thing, for any human rights convention to be meaningful it has to be a living instrument; it has to be able to be developed, interpreted and applied commensurate with how society itself evolves. If that were not the case, it would be subjected quite rightly to very severe criticism that it was out of date, it wasn’t speaking to today’s issues or values.” He points to the “margin of appreciation” rule, which beyond certain recognised common values leaves matters to the decision of the member state, and public and parliamentary opinion – as for example in the current debate on assisted suicide – without diluting the essence of the Convention rights. “So the Convention and its jurisprudence machinery is a lot more sophisticated than is very often presented through the media.”

Strasbourg judges have also shown themselves respectful on occasion of UK decisions not to follow previous Human Rights Court rulings, where reasons have been given for adopting this course.

Asked whether the deportation cases demonstrate an imbalance of rights between perpetrator and victim, Miller responds: “These are cases where an independent and impartial court has taken a view on the evidence, which is often not what is then shared in some of the media. Is there a risk of torture or ill treatment taking place if this person is deported? Do members of his family, especially children, have rights to respect for private and family life? Is it disproportionate to deport this person in terms of the impact on children? The courts, based on evidence and submissions, make judgments in accordance with law and the obligations the UK has entered into internationally, and if the UK were simply to deport everyone that it didn’t like or that it thought posed a threat, then you are simply exporting the problem and expecting other countries to try to find solutions, and that’s not the way that the UK has historically behaved, and it doesn’t behove it to act in this way now.”

Back to the 1990s

To date, the Government has promised to do no more than repeal and replace the Human Rights Act, as opposed to withdrawing from the Convention, though some ministers undoubtedly want to go further. In terms of enforceability, the first option would simply restore the pre-1998 Act position, when individuals had to petition the Strasbourg court in order to achieve a ruling on whether the Government was in breach of its Convention obligations. To Miller, however, this would not only provide a less effective remedy, “it would also potentially remove the framework in which public authorities have tried to ensure that their policies and practices create a human rights culture in full compliance with the European Convention”. And if, as has been mooted, the British Bill of Rights had an override provision whereby the UK would seek to choose which judgments it would comply with, the protection that the Human Rights Court offers would be much diluted.

He points to a further consideration, one that abolitionists play down. “I already know, as chair of the European Network of National Human Rights Institutions, that there are not a few people round Europe, such as in the Duma just now with Putin, who would be only too pleased if the UK set this example of countries being able to seek to opt out of article 46 of the Convention, which is that you accept the judgments, you accept the rule of law.”

As has also been pointed out, as long as the UK remains subject to the Convention, our judges are likely to interpret legislation in accordance with its provisions; and ministers will continue to be bound by their obligation under international law to give effect to rulings of the Strasbourg court. Indeed, they would remain so bound in relation to rulings given prior to a withdrawal, including on the highly charged issue of prisoners’ voting rights. (That case, incidentally, undermines the claim that Strasbourg rulings are directly applicable in this country – despite a consistent series of decisions since 2005, no more British prisoners have the vote now than did then.)

No Convention, then what?

Some opponents of the Act broadly recognise this, and the consequences internationally of picking and choosing which Convention rulings to abide by. Nick Timothy, former chief of staff to Home Secretary Theresa May, argues that the choice facing the Government is therefore “binary” – remain within the Convention and accept the jurisdiction of the Strasbourg court, or withdraw completely and set our own framework for human rights.

Curiously, both he and Daniel Hannan MEP, another leading critic, propose what they see as a neat way of squaring the sovereignty circle: on withdrawing from the European legal framework, the UK should then enact the Convention rights as part of the British Bill of Rights. This is seen as the way to reaffirm our commitment to these common values while restoring the authority of our domestic Parliament – and (perhaps optimistically) also continue to fulfil the Northern Ireland guarantees.

This appears to expect our judges, faced with the text of the Convention as part of our substantive law, to ignore the wealth of interpretative jurisprudence in working out its extent and effects. Not only that, the Convention would, ironically, thereby end up having the direct effect it is mistakenly believed to have at present – and, it has even been argued, our courts might be inclined to take a more activist role in applying it than they have to date. The usually well-informed Joshua Rozenberg, however, has written: “The message of the British Bill of Rights will be that such activism undermines the supremacy of Parliament and is corrosive to the rule of law.”

Further questions remain to be answered over whether a British Bill of Rights could be entrenched in some way, and in relation to which rights.

Another suggestion that some abolitionists appear to accept with equanimity is that the devolved parliaments should simply be allowed to go their own way, with the result that the British Bill of Rights might become more of an English Bill of Rights, apart from its effect in the reserved areas.

“That would be the outcome I would expect with a British Bill of Rights,” Miller observes, “and perhaps it’s quite counterintuitive from the current constitutional debate around strengthening the Union to introduce a measure which could actually have the opposite effect.”

If, that is, the English people are prepared when it comes to the point to see themselves as the only ones left without the current protection of the Human Rights Court and its jurisprudence.

Two years from now...

There is much misinformation about the true impact of the Convention, as well as a tendency to magnify the areas of controversy while ignoring the quiet effect the Convention has had in many areas of public life. It is notable, for example, that the newly constituted Scottish inquiry into historic child abuse, under Susan O’Brien QC, has been explicitly directed to take a human rights-based approach to its proceedings in order to ensure that all participants are fully able to have their voices heard. The Scottish Human Rights Commission has played a considerable role in the victim impact meetings that paved the way for the inquiry.

Perhaps by the time a British Bill comes to be considered in Parliament, we will know the outcome of the EU referendum. Most commentators regard the question of the compatibility of withdrawal from the Convention with continued EU membership as not clear cut (the EU recognises the Convention for matters within its competence), though Sir David Edward has expressed the view that the two are incompatible (Journal, February 2013, 12 at 14).

And on the wider international scene? Miller believes considerable pressure will be brought to bear on the Government, even if not publicly, against its commitment: “The implications for the UK internationally shouldn’t be underestimated... Most if not all previous Foreign Secretaries would have had grave reservations about doing anything like this.”

Rozenberg’s advice to Justice Secretary Michael Gove is to go through all the consultation stages of green paper, white paper and (given sufficient cross-party support) a draft bill in a couple of years. He adds: “By then, however, he will come to realise that there is really no need for any significant reform at all.”

That is not a conclusion that will go down well among many in the Government. The Human Rights Act faces a long fight for survival.

Selected further reading

Overview David Allan Green: jackofkent.com: bit.ly/118svB0 (contains many useful links) Matthew Scott: barristerblogger.com: bit.ly/1ERTVGu (links to Daniel Hannan article to which it replies) Joshua Rozenberg’s latest intelligence: www.lawgazette.co.uk: bit.ly/1Giv9qq

Referred to in text Nick Timothy: www.telegraph.co.uk: bit.ly/1FoY2dN Lord Sumption lecture: www.supremecourt.uk: bit.ly/1eMSTGT

On devolution Mark Elliott: publiclawforeveryone.com: bit.ly/1M0aWnf Aileen McHarg: ukhumanrightsblog.com: bit.ly/1K6Jea4