The Conservative Party’s Proposals for human rights – John Wadham
2 June 2015
The October 2014 Conservative Party proposals promised to:
End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement.
In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point at which our Bill comes into effect.” (see proposals here )
The Conservative Party’s manifesto included a much shorter summary of the proposals without the specific details about the relationship with the ECtHR of the Council of Europe and the Queen’s Speech on 27th May promised that there would be a consultation exercise (see summary here)
The ECHR, withdrawal and expulsion
A law which rendered ECtHR judgments ‘advisory’ would breach Article 46 ECHR, which requires signatory states – as a matter of international law – to abide by the ECtHR judgments against them. Withdrawal from the ECHR is relatively easy procedurally because it is in the hands of the government although this would probably require the consent of Parliament. (see relevant legislation here).
Article 58 of the ECHR itself allows a state party to denounce the Convention and withdraw from the jurisdiction of the Court on giving six months’ notice. For on-going or existing cases a denunciation does not prevent the Court giving judgment or compensation being ordered. Withdrawal from the ECHR does not, however, automatically require withdrawal for the Council of Europe (or from the EU). Withdrawing from the ECHR itself does not necessarily mean that the UK would not be upholding the values set out in the Council of Europe’s statute (a requirement of membership) but the expectation of all new Council of Europe member states is that they would ratify the ECHR and sign up to the right of individual petition and the jurisdiction of the ECHR.
No state has ever been expelled from the ECHR but Greece, during the time of the military junta, chose to withdraw (it is likely to have been expelled anyway).
Greece, following the installation of the Colonels’ military dictatorship in 1967, withdrew from the Council of Europe in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime. Turkey was suspended, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place. Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.
Timetable and tactics
However some in the Conservative Party might wish to “trigger” an expulsion instead of withdrawing from the ECHR and therefore might choose to wait until after the new UK government has tried to negotiate a deal which relegates judgements to the status of advisory opinions (unlikely) and can say that “Europe” refused to budge. There maybe tactical reasons why such negotiations with the Council of Europe would be better left after the proposed Bill of Rights has been passed by Parliament (if that ever happens). However, the rejection of the Conservative government’s proposals will not obviously lead to the UK’s expulsion from the ECHR.
What is a more likely scenario, particularly given the delay in implementation of the British Bill of Rights announced in the Queen’s Speech, is that a final judgment in a pending case by the ECtHR will require legislative change. Parliament, given the new Conservative majority and October proposals, might choose to reject the proposed changes in UK domestic law required by the judgment. As a result the Committee of Ministers, who are charged with ensuring that judgments of the Court are implemented, will put pressure on the UK to comply and will eventually need to consider sanctions (the Committee of Ministers’ review of the failure to implement the “Prisoners’ voting case” is planned for September 2015).
The Committee of Ministers of the Council of Europe has the power (which it has not yet ever used) to refer a refusal by a state to implement a judgment back to the European Court of Human Rights itself. The Committee of Ministers needs a two-thirds majority to take this action and the representatives from other member states will be very reluctant to take this step (Article 46(2)).
Link to repeal of HRA and domestic law
Contrary to the implication in the October proposals, any change in the law as a result of a judgment by the ECtHR already requires the consent of Parliament because it is only Parliament that can change the law. In the past changes to UK law resulting from judgments of the ECtHR have usually been seen as relatively uncontroversial and the proposed provisions have been added to another, unrelated, government bill and often passed without any serious debate (reports of Parliament’s Joint Human Rights Committee. )
The current procedure contained in the Human Rights Act does, however, allow the government to amend legislation more quickly following a judgment from the ECtHR or a declaration of incompatibility from a UK court. This procedure allows the government to use secondary legislation to amend the offending primary legislation (section 10). The instrument needed to change in the law does not then need to be in the form of an ordinary bill and to go through all the three stages and in both Houses of Parliament. A “Remedial Order” still needs to be approved by both Houses but usually there is no possibility of amendment and the debate is short (to 31st July 2013 19 final declarations of incompatibility had been made, only three were resolved using this process). However following the judgments in the ECtHR on the right of prisoners to vote in elections some Parliamentarians arranged for a debate in Westminster Hall on the judgment and the possible proposals to amend UK law. This debate would not have led to changes in the law itself but the strength of the opposition to the idea of given prisoners the vote had a significant political affect (the vote was 234 to 22 in favour of retaining the current ban, 10 February 2011).
Conclusion
At present the ECtHR system is subject to a fundamental and long-term review and in November 2013 the Council of Europe initiated a further consultation exercise:
…holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights. This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court (see the proposals here).
This gives a new UK government an opportunity to make proposals to change the current system.
Insiders in the Council of Europe do not want to see the UK withdraw from the ECHR or to see it forced to leave the system because the UK is seen a model of compliance with the ECHR; supports the aims and objectives of the ECHR and the Council of Europe; UK civil servants put in more than their share of the effort to make the systems work and pays its contributions and; if the UK left the ECHR, it would make a large dent in the comprehensive coverage by the ECHR across Europe and send a particularly powerful negative message to states with very poor records of compliance.
John Wadham is currently acting as freelance advisor to the Council of Europe and providing strategic and legal advice on all the recent political party’s proposals on human rights.
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It was the Labour government that brought Rights Home with the introduction of the HRA. It could and should have taken a step further by bringing the courts home too by ensuring that the courts sat in each state annually, thus creating an open dialogue with citizens than a distance in Strasbourg. We were instrumental in shaping the ECHR which after all we also drafted, why then should be now ignomoniously be compelled to leave?
The present debate mirrors in some way of the ramshackle Wilson government of 1979 where after a successful negotiation we entetered into Europe in the form of a referendum 2 to 1 where Lord Hailsham could be seen in one footage violently attacking with a baton a Wilson election poster. Cameron faces the same situation with a narrow majority, euro sceptics looming a threat to get out of Europe entirely for self serving reasons.
This threat is real and must be taken seriously. It is not simply, that our international reputation and values in human rights that is at stake nor our international jurisprudential influence across the globe, but more worrying of our domestic judges. The repeal would mean same old same old judges deciding cases without independent scrutiny; it would in effect amount to curtailing of our rights by the very same judges and politicians who would be bound by the supremacy of parliament- a poodle affecting the interpretation and application of convention rights of general importance.
It is no accident that the courts have found states wanting in one aspect that since the origins no state has been found to have violated Article 14, that of indirect discrimination.
In short neutering judges would only affect their performance, enhance and impose their fulfilling values to the detriment of all citizens everywhere.
Why are we so vehement in ensuring that Scotland remains in the Union, as well as the other partners who are adment that ECHR should remain which after all we drafted? Why are we so frightened of the institution of the ECHR which has enshrined our laws but in a very limited cases thus preserving the doctrine of Parliamentary supremacy? I cannot help but recall the image of Lord Hailsham violently attacking with a weapon an election poster of PM Wilson. I also recall the candid observations of one of the Judges in the ECHR who observed how remarkable it was that in the history of the court that there have been no violation of Article 14, specifically indirect discrimination?
It is plain that as well as losing the internation moral influence repealing the ECHR poses a serious threat to our domestic laws, that of neutering domestic judges will only affect their performance in the deliberation of judgements with the same old same old to the exclusion of a wider, polochial international influence mandating the poodle of domestic politicians into politics of unthinkable damage to our institutions, decision makers and citizens everyway.
The question IS can such as the UK or any Country presently in the European Union get out of the ECHR? As I understand it, present Member States of the European Union are indeed subject to a range of human rights obligations derived from the Charter of the United Nations. So when we agreed-if we did indeed agree-for I do not think the people of this Country were indeed asked-would our alleged acceptance to the ECHR that are now presently lodged with the United Nations-I doubt WE COULD GET OUT OF THE ECHR AS LONG AS WE REMAIN IN THE EU_IF AT ALL? No matter how often we are told that this Government will bring out a new Bill of Rights and withdraw from the ECHR-they cannot do so especially as long as we remain in the EU. However, if the people voted for the proposed NEW Bill of Rights and accepted it-would they be destroying their very own long standing Common Law Bill of Rights? I am asking-perhaps you know the answer?