Details of human rights reform group emerge, but will it have teeth?

10 March 2011 by Adam Wagner

Lord Anthony Lester, Helena Kennedy QC and Martin Howe QC are to sit on the upcoming commission on human rights reform, the press are reporting this morning.

Lester and Kennedy are both well-known human rights experts. Howe has long-standing proponent of replacing of the Human Rights Act with a bill of rights.

According to The Sun, which says the “probe on how to tackle power-crazy Euro judges is being held up by bickering Tories and Lib Dems“, the 7-strong commission will also include another Liberal Democrat nominee (in addition to Lester), two more members appointed by the Tories and a senior Ministry of Justice civil servant. It will have to report by December 2012.

The Independent reported yesterday that the commission would be set up “within days” with an independent chair (it is not clear whether this will be in addition to the 7-strong committee) and that

It is expected to look at how a UK Bill of Rights might affect Britain’s obligations under the ECHR, which allows the Supreme Court, the highest domestic court, to be overruled by judges in Strasbourg. Options include reforming the European Court of Human Rights, possibly by opting out in an attempt to force changes that would then allow Britain to opt back in. The Liberal Democrats are unlikely to support such a dramatic move, believing it would undermine the country’s commitment to human rights.

But will the reform group have teeth, or will it be in The Sun’s words, a cop-out?

The group has already been long in gestation. In May 2010 the coalition’s Programme for Government pledged to “investigate the creation of a British Bill of Rights” that “incorporates and builds on all our obligations under the European Convention on Human Rights“. Moreover, it will ensure “that these rights continue to be enshrined in British law“, whilst protecting and extending British liberties. Finally, the government pledges to  ”promote a better understanding of the true scope of these obligations and liberties“.

The project has taken on a greater urgency as a result of recent controversies over prisoner votes and sex offender rights.

As I have suggested, rather than seeking to repeal or diminish the HRA – and more particularly, the UK’s commitment to the European Convention on Human Rights – the commission may recommend a Human Rights Act Plus. This would ensure the existing rights, whilst increasing “British liberties”.

What would this mean in practice? It is incorrect that the commission would have no power over the Convention, although as Lord Lester told the Daily Mail, it is unlikely to recommend pulling out of it altogether. Doing so could lead to legal problems for the UK, but as Rosalind English has pointed out, this is also not beyond the realm of possibility.

The commission would, however, be limited to tinkering. The Convention rights, which are incorporated into British law by the HRA, are widely construed and the Human Rights Act already puts a British slant upon them. For example, section 12 bolsters the right to journalistic and artistic freedom of expression. Section 13 bolsters (in theory at least) the right to freedom of thought, conscience and religion.

So it is possible to imagine the commission recommending a rebalancing of other rights which have proved controversial. Perhaps a provision will be put in place to diminish the use of article 8 (the right to family and private life) in order to prevent deportations of convicted criminals, a regular area of controversy.

The commission may also investigate bolstering the right to “receive information”, which is a part of article 10 but has not received much traction in the case law. The current government has already said it wants to increase the scope of freedom of information law and this could present another opportunity to do so.

The commission would be unable, however, to recalibrate other controversial rights, and in particular article 3, which outlaws inhuman and degrading treatment. This is often invoked to prevent deportations to countries where a deportee is likely to be exposed to torture or similar treatment. Unlike article 8, it is an “absolute” right, which means it cannot be breached under any circumstances. So deportees would still be entitled to its protection if we remain signed up to the European Convention.

Another area which could be reformed is the relationship with the European Court of Human Rights, a much-criticised institution whose decisions the government has agreed to “abide by” but which courts only have to “take into account”. Perhaps a clause will be inserted into a new human rights act emphasising the sovereignty of the UK Parliament, along the lines of the one in the new EU Bill (which, it should be added, will probably be of dubious effect).

In any event, even if the HRA were to be repealed entirely, the UK’s two most senior judges have said that it would probably make no difference. The President of the Supreme Court has said that if Parliament chose to repeal the HRA, the courts may choose to enforce it anyway. He argued that the HRA may have attained in law the status of “constitutional statutes” which are effectively impossible to repeal. Lord Hope, his deputy, agrees that repealing the HRA would make “very little difference to the way such rights are enforced in our courts.”

The Law and Lawyers blog has highlighted other proposals for a bill of rights which have been made in recent years, including Martin Howe QC’s 2006 article and A British Bill of Rights: informing the debate by the legal reform group Justice.

So, the commission will have its hands tied to an extent, in that it will be unwilling and probably unwise to rip up 60 years of human rights law in order to strike a new course. But, one should not underestimate the ability of clever lawyers to find a way to appease both the critics and fans of the current act. After all, the original Human Rights Act represents a neat compromise which allows courts to rule on issues of social and (whisper it) political importance without undermining the ultimate sovereignty of the elected Parliament. It will be interesting to see what this gang of seven come up with.

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