Tory Plans to Repeal the Human Rights Act: the Legal Community Responds – the Human Rights Roundup

19 October 2014 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular kicking collection of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

This week, the legal community reacts to Tory plans to repeal the Human Rights Act. Given the significance of the proposals for human rights protection in the UK, this week’s roundup focuses on how those plans have been received. 

In the News: Responding to the Tories Human Rights Reforms

Earlier this month, the Tories unveiled their plans for human rights reform in the UK. While he failed to clarify what, if any, residual role the European Convention would have in the UK, the Prime Minister made it clear that the Conservatives will repeal the Human Rights Act 1998 and replace it with a British Bill of Rights.

The legal community have been quick to respond to these proposals, highlighting various flaws, loopholes and unresolved issues that remain. We consider some of those responses below. The UK Human Rights Blog has provided commentary via Adam Wagner, Angela Patrick, Aileen McHarg and Cian Murphy. For some great overall responses, read Dominic Grieve QC in Prospect Magazine and Francis Fitzgibbon QC in the London Review of Books. See also John Witting QC of 1 Crown Office Row on Labour List.

Issue 1: Will a British Bill of Rights Stop Strasbourg Intervention

Many commentators have examined whether Cameron’s solution will actually fix what he sees as the problem with human rights adjudication, namely that Strasbourg gets to give the final interpretation of Convention rights and that the UK courts are bound by it. For example, Mark Elliott, writing for his Public Law for Everyone blog, has highlighted that if the UK remains a signatory to the Convention, repealing the HRA 1998 will not stop Strasbourg getting involved. Instead, he highlights that replacing the 1998 Act with a British Bill of Rights would just make it harder to adjudicate Convention rights domestically, which may encourage more people to litigate all the way to Strasbourg. Elliott has analysed the proposals in depth here.

Issue 2: A Supreme UK Court or Democratic Accountability – what is the aim?

Other commentators have highlighted that multiple reasons have been given for the proposed changes, but that many of these do not sit comfortably with each other. The Prime Minister has suggested, for example, that by releasing the UK from Strasbourg’s grip, we will be able to have a true Supreme Court in the UK, while also arguing that the move would enhance democratic accountability. David Mead, however, writing for the protestmatters blog, has noted that a choice between judicial power and democratic power has to be made, and that the Tories cannot promise both.

Issue 3: What impact will the changes have on the devolved regions of the UK?

One interesting point that has arisen since the Tories human rights plans were announced is what, if any, impact they would have on the devolved regions of the UK. The Scotman reported that a spokesperson from the Scotland Office stated that human rights legislation is built into the Scotland Act 1998 and, as such, the legal status of any new human rights legislation would not necessarily be clear. The SNP have since indicated that they would not repeal the Human Rights Act 1998 in Scotland.

And finally…

If all this seems like a bit of mystery to you, as a non-lawyer approaching the question of human rights for example, the following blogs have attempted to recap some of the basics and explain the current debate on human rights in without too much jargon:

• Obiter J
• Jack of Kent
• Human Rights Watch – Q&A on human rights

In the Courts 

• Karia, R (On the Application Of) v Leicester City Council [2014] EWHC 3105 (Admin) (30 September 2014)

Challenge to closure of council-run care home by 101-year old resident fails

• Konolova v Russia Application No. 37873/04 (9 October 2014)

Violation of Article 8 where medical students were allowed to watch a woman giving birth without her consent.

Case Summaries 

• Hassan v UK Application No. 29750/90 (Grand Chamber 16 September 2014)

In this case, the applicant brought a claim against the UK on behalf of his brother, who was temporarily detained in Iraq by the British authorities. The Strasbourg court firstly found that the Convention applied by reason of the control exercised by the UK authorities over the detainee. Secondly, it went on to consider the relationship between international human rights law and international humanitarian law. It held that, although Article 5 of the Convention did not make an exception to the right to liberty where there was no intention to bring criminal charges, and while the UK had not made a war-time derogation under Article 15, the internment did not breach the Convention. The ECHR applied in situations of armed conflict, but had to be interpreted compatibly with international humanitarian law. Thus, the detention was compatible with Article 5 when interpreted alongside the UK’s obligations under the 3^rd and 4^th Geneva Conventions. Frederic Bernard has commented on the case for the Strasbourg Observers blog here. He suggests that the Grand Chamber was right to hold that human rights law still applied in situations of armed conflict. However, he goes on to argue that the Court’s interpretation of the Convention, in line with the Geneva Conventions, goes too far.

•  Dimitras and Gilbert v Greece [2014] ECHR 1023

In this case, the Director of a Greek human rights NGO, along with another staff member, challenged provisions of the Greek Code of Criminal Procedure. Mr Dimitras, who is atheist, had to declare his religious beliefs in order to avoid using the Christian oath when being sworn in as a witness. The European Court of Human Rights found that there had been a violation of his Article 9 right to freedom of religion. The Articles of the Code requiring a witness to state their religion to avoid the use of the standard oath were not ECHR compliant, and the Greek authorities had failed to show that they were proportionate or justified. Frank Cranmer, writing for the Law and Religion UK blog, has commented on the case here. He notes that, while Greece has been slow to respond to this problem, despite a series of rulings to the same effect, this is perhaps unsurprising due to the ‘prevailing attitude to religion’.

Events

• British Institute of Human Rights, Bringing Rights to Life: Free Regional Events for Mental Health Workers – Autumn 2014

UK Human Rights Blog Posts

• Journalist’s safety and the UN – October 4, 2014 by Jessica Allen
• Another Strasbourg judgment which Putin may wish to ignore – Scientologists win – October 5, 2014 by David Hart QC
• The Fragility of Human Rights – October 5, 2014 by Dr Cian Murphy
• Strasbourg and why you must give reasons on domestic appeals – David Hart QC
• The patentability of living things – the latest in the BRCA gene saga – October 7, 2014 by Rosalind English
• Asbestos victims successfully challenge change in conditional fee/ATE costs rules – October 8, 2014 by Rosalind English
• The UK in the European Convention: fudge, or a shining example? – October 9, 2014 by Rosalind English
• Consultation process not unfair after all, says Court of Appeal – October 12, 2014 by David Hart QC
• Munchausen, MMR and mendacious “warrior mothers” – October 15, 2014 by Rosalind English