British Bill of Rights: radical reform or damp squib?

With the impending EU referendum grabbing the headlines, it is important not to ignore another aspect of the United Kingdom’s relationship with Europe, that of its relationship with the Council of Europe.

While the two are easily confused, it is important to remember the distinct history, organisation and purposes of the two institutions. The Council of Europe, and more particularly its European Convention on Human Rights (ECHR), has recently suffered from sustained criticism from certain quarters in the United Kingdom. In a document entitled Protecting Human Rights in the UK the Conservative party proposed to repeal the Human Rights Act 1998 (HRA) and withdraw Britain from the Strasbourg court, replacing the current system with a British Bill of Rights. However, reforms appear to have stalled as the publishing of a consultation document continues to be postponed.

What the promised consultation document will contain is extremely important, as any alteration could have potentially drastic consequences for the Scottish legal community. However, the political and legal realities, combined with a depletion of Conservative hubris on this issue, mean that changes are more likely to be limited in scope. The idea that the UK could leave the Council of Europe and the ECHR remains deeply undesirable, almost impossible to envisage in practice, and appears to be finally off the agenda. Yet it seems unlikely that human rights will be removed from the public limelight, as the UK Government appears set on attempting to reform the HRA.

Before proceeding, it is important to remember that this short article is not meant to be a critique of individual rights or the many problems that their application has facilitated. Instead it should be read as concerning the HRA as a single entity and the importance of human rights taken as a whole.

Public controversy

To the impartial observer, the debate over human rights in the UK often involves politicians, lawyers, academics and activists doing little more than shouting at each other. Human rights have come in for sustained criticisms by many within the Conservative party and certain elements of the media. Headlines have been grabbed by decisions allowing prisoners to vote and inhibiting the deportation of known terrorists. To others, the HRA is placed on a pedestal. To Amnesty International, the Act is a vital means of protecting Britain’s most impoverished and vulnerable, safeguarding survivors of domestic violence, protecting the rights of ethnic minorities and defending citizens against intrusive mass surveillance.

The sovereignty of the UK remains a highly contentious issue, with certain politicians constantly outlining the fear that UK courts, and most importantly the UK Government and devolved institutions, are becoming subservient to Strasbourg. Concerns have increased since Protocol No 11 established a full time single court, replacing the Convention’s former monitoring machinery in 1998, especially the rights concerning individual application.

The main criticisms of the current system have entered the public imagination through a number of highly controversial cases. For example, the prisoners’ right to vote. In Hirst v United Kingdom (No 2) (2006) 42 EHHR 41, the ECtHR held that the blanket disenfranchisement of prisoners in the UK was a violation of the right to free elections. The UK has yet to implement the court’s judgment, which has led to a string of similar cases.

There has also been a public outcry in relation to the inability of the British Government to deport “terrorists” to nations in which there is a risk of torture or evidence obtained under torture being used in legal proceedings. The most prominent example of this was the long battle to deport the infamous Islamic cleric Abu Qatada to Jordan to face charges of terrorism-related offences.

Crucially, and controversially for the UK's international reputation, the HRA has been extended to the battlefield and British military camps abroad. In Al-Skeini v UK (Application No 55721/07) (2011) and Al-Jedda v United Kingdom (Application No. 27021/08) (2011) these rights were extended to individuals in British captivity within a war zone. The tipping point for the UK Government was perhaps Smith v Ministry of Defence [2013] UKSC 41, in which the Supreme Court established that the right to life under article 2 ECHR extended to the battlefield, allowing those killed in action to pursue the Government for negligence.

Playing to this public outcry, Michael Gove noted: “Human rights have become associated with unmeritorious individuals pursuing through the courts claims that do not command public support or sympathy.” Whether this is substantially correct is highly dubious.

Clarifying some misconceptions

It is important to remember that repealing the HRA does not remove the UK's obligations under the ECHR. Secondly, it is easy to forget that the Council of Europe is not the European Union, and with the current EU referendum fast approaching their confliction within the public imagination will most likely remain.

The third misconception is that the HRA does not respect the sovereignty of Parliament. The HRA does not give British courts a US Supreme Court style strike-down mechanism. The powers given in the Act are stated as being exercised by the courts pursuant to the Act, and therefore respect parliamentary sovereignty.

The sovereignty of Parliament is further protected by the margin of appreciation, today contained within Additional Protocol 15 and articulated by Lord Hope of Craighead in Salvesen v Riddell 2013 SC (UKSC) 236 (at para 36): “Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the court to say whether the legislation represents the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way.”

The final misconception to be overcome is the suggestion that British courts are hamstrung by the jurisprudence of the Strasbourg court. In Osborn v Parole Board [2013] UKSC 61 at para 57, Lord Reed noted: “[The HRA] does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.”

The contention that the UK courts, and particularly the Supreme Court, lack authority over Strasbourg is probably incorrect. For example, in R v Horncastle [2009] UKSC 14 the Supreme Court decided not to follow an ECtHR precedent of Lucà v Italy (2001) 36 EHRR 807.

Westminster and its limited room for manoeuvre

Despite the apparent limits, and perhaps the often misplaced criticisms, of the current system, calls for reform remain. At a purely theoretical level, the UK Government could repeal the HRA and remove the UK from the ECHR and possibly even the Council of Europe. In practice, this is almost impossible to envisage for a number of key reasons.

The Sewel Convention

The UK Government is perhaps going to face its biggest challenge to reform from the devolved institutions in Scotland, Wales and Northern Ireland. The idea of a “British Bill” being imposed on Scotland will obviously anger many in Holyrood.

It is not possible to tell whether the Sewel Convention would require the consent of the devolved institutions to repeal the HRA, as while the HRA is a reserved matter, human rights remain stuck within the new constitutional maze between devolved and non-devolved powers. While confused, it is only possible to state that a full repeal of the HRA by the UK Parliament may be possible, but legislating on a replacement British Bill would be far more problematic as any new legislation would require the full consent of the devolved institutions. While Westminster could in theory simply ignore the Sewel Convention, such a move would be exceedingly brave and would add another considerable strain to the Union. The result is that unless the devolved institutions buy into any proposed replacement to the HRA, Westminster will find its ability to legislate limited.

The Good Friday Agreement

In relation to Northern Ireland, a possible repeal of the HRA would be extremely controversial, as written into the Good Friday Agreement and the British-Irish Agreement – an international agreement between the Republic of Ireland and the UK that underpinned the peace process – is respect for and the incorporation of the ECHR in Northern Ireland. Any changes to the HRA would have the potential to upset the important practical function human rights law is attempting to serve in dealing with the legacy issues from the Troubles. While these problems may not be insurmountable, they would be extremely difficult to overcome in practice.

International reputation

It would be exceedingly naïve to believe that the movement away from the ECHR and the HRA is not and will not harm the reputation of the UK abroad. This is already happening. In October 2014 Kenyan President Uhuru Kenyatta, just days before appearing before the International Criminal Court on charges of crimes against humanity, cited David Cameron’s attack on human rights framing the debate as a battle between sovereignty and judicial activism. Just how to explain the dilution of human rights in the UK to the 47 member states of the ECHR, including the likes of Russia and Turkey, while internationally calling for human rights compliance, is difficult to envisage. We would be left in the unacceptable position that the UK would join Belarus, a nation with a highly questionable human rights record, as the only European states outside the ECtHR’s jurisdiction.

A new British Bill of Rights and Responsibilities?

Ignoring the unlikely situation in which the HRA is repealed and no legislation is enacted to replace it, we must consider what form any new legislation would take and what it would hope to achieve. As outlined above, it is important to remember that any legislative reform is going to be extremely difficult, although this has not stopped a number of possible changes being suggested.

With the repeal of the ECHR off the table, it appears that the reforms will be more modest than originally feared. Michael Gove, when questioned by Baroness Neuberger, stated: “At the moment, we envisage that all the rights contained within the Convention will be affirmed in any British Bill of Rights.” If this is the case and a new bill would not derogate significantly from any of the rights contained in the ECHR, it is hard to predict what the Government actually envisages.

There is a range of possible changes. There appears to be an emphasis on “British rights”, although what this actually means is less clear. For example, it has been suggested that the UK could potentially benefit from a Canadian style right to trial by jury, although in practice this is unlikely to be viable in all cases. Similarly, there appear to be a preference for free speech over privacy, although what this entails in practice is unknown.

The Government has hinted that it wants to give British troops “more freedom to operate in war zones”. It is important when considering this as a potential reform to note a study called Clearing the Fog of Law, published by the Policy Exchange, in which Dr Jonathan Morgan of Cambridge University states that “our armed forces should certainly not be above the law. That is why the Geneva Convention should apply”.

Without the consultation document or further information, we can only speculate what reforms the Government will propose. Even if the consultation does propose such changes, the main concern of those so passionately opposed to the ECHR will remain. The UK will not be relieved of its duty to comply with existing judgments, which means that the most controversial cases such as prisoner voting and deportation cases will remain unchanged.

Coming soon...

Taking all this into account it is difficult to not agree with the Faculty of Advocates, which submitted that “the Faculty has been unable to identify any significant problem with the current operation of the Human Rights Act or the devolution legislation that incorporates ECHR. It is not convinced of the need for substantial reform”.

Questions over what the Government hopes to achieve remain largely unanswered. This was highlighted in the House of Lords EU Subcommittee on 10 February 2016 when Michael Gove MP was faced with an important observation, then question, from Lord Richard: “I am a bit lost, actually, Mr Gove, this morning… what [you are] really saying to us, is, 'Yes, we agree with the rights in the Convention. Yes, we want to keep the rights in the Convention. Yes, we have one or two qualifications, such as the troops issue and the emphasis on freedom of expression in this country as opposed to privacy.' What on earth do you want to repeal the Act for then?”

Despite this, it would appear that reform in some form is going to be attempted. This will only become known once the consultation document is published. Initially planned for last autumn, it was moved back to February 2016 and has since been further postponed.

The continued delay is unsatisfactory, which brings us to one final, and very frustrating, question highlighted in a recent exchange in the House of Lords EU Subcommittee:

Baroness Kennedy (The Chairman): When can we expect the consultation paper?

Mr Michael Gove MP: Soon.

Baroness Kennedy (The Chairman): Oh, Secretary of State, you can do better than that.