Reports of the Human Rights Act’s death have been greatly exaggerated

2 October 2011 by

The Home Secretary Theresa May’s has told the Sunday Telegraph that she would “like to see the Human Rights Act go“.

There is plenty of nonsense out there about the Human Rights Act. For example Emma McClarkin – a member of the European Parliament no less – said on BBC’s Politics Show (at 5:15) that we are “hamstrung by the European Charter of Human Rights”; a charter which does not exist.

There will more of this before the Conservative party conference is over, so let’s go back to basics with a few questions and answers about the Human Rights Act.

What is the Human Rights Act?

The Human Rights Act 1998 incorporates the European Convention on Human Rights (ECHR) into British law. This means that a public authority – including government agencies, hospitals and even courts – cannot act in a way which breaches those rights. The ECHR is the engine of the Human Right Act, which is the bodywork surrounding it.

Is it going to be repealed?

Probably. So Theresa May will get her wish.

But is that the end of human rights in the UK?

No. A commission made up of 7 lawyers, an academic and a civil servant is currently investigating whether the HRA should be replaced with a UK Bill of Rights. So far they have advised the Government on reform of the European Court of Human Rights – another pantomime villain in this piece – and squabbled. They have to report in just over a year.

The key thing about the Commission on a Bill of Rights is that it is not permitted by its terms of reference to recommend withdrawal from the ECHR. At the moment we have a Human Rights Act, which incorporates the ECHR into UK law. Any Bill of Rights would have to be a “Human Rights Act plus”, as thanks to the Coalition Agreement, it cannot be a “Human Rights Act minus”.

Put another way, the exterior may change but the ECHR engine will remain. So any UK Bill of Rights will be a bit like an updated Ford Fiesta; a new look and a few new features, but essentially the same car.

It may add some traditional “British” rights, such as the right to trial by jury, and try to rebalance some of the existing rights, for example the right to privacy. It may even appeal more to “responsibilities”, which are already threaded in the ECHR anyway. But the result will be very similar.

Can’t we just get rid of the ECHR altogether?

This is, as I have said elsewhere, the £160m question. Practically speaking, the Coalition Agreement says that any new instrument must be one that “incorporates and builds on all our obligations” under the ECHR. This proviso was apparently hard won by the Liberal Democrats so it seems extremely unlikely that the nuclear option would be used in this Parliament without splitting the Coalition.

Legally, the situation is even more complicated. Some argue that withdrawing from the ECHR would necessitate withdrawal from the European Union too. Others, including Rosalind English on this blog, suggest that it might be possible to withdraw from the jurisdiction of the Strasbourg-based European Court of Human Rights without pulling out from the ECHR altogether. And let’s not forget the little discussed but important Northern Irish dimension.

All that said, even if we did withdraw altogether from the ECHR or any similar rights convention, the most senior UK judges have intimated that they could probably find a way to implement the rights, many of which existed under our “British” law before 2000, in any event. Not to mention the fact that the UK has signed up to something called the EU Charter of Fundamental Rights (perhaps that was what Emma McClarkin MEP was thinking about). And the EU itself is about to sign up to the ECHR as an institution, which would further lock us into the ECHR through another route. So whatever its intentions, the UK may find itself tangled like Gulliver in million tiny ropes.

Oh right, but what about those unelected European judges dictating our laws?

Leaving aside the fact that judges in Strasbourg are more democratically accountable than our local ones, the Human Rights Act only mandates our judges to “take into account”any Strasbourg judgment. And, often, our judges refuse to follow European decisions, as was envisaged under Human Rights Act, which was meant to “bring rights home”. But when there is a strong line of Strasbourg case law which seems fairly sensible, our courts will follow it.

There have been plenty of unpopular human rights decisions. In some instances, human rights law has been wrongly blamed. And many of those cases have little or nothing to do with Strasbourg, but rather our own judges making decisions that the public and politicians disapprove of.

But in some rare cases, only a handful each year, the European Court of Human Rights has effectively overruled our own highest court. The most high-profile instance has been over prisoner votes, and this is still the scene of an uneasy standoff between the UK government and the Council of Europe, which monitors compliance with the Strasbourg judgments.

Our Government is concerned, with some justification, that the court has taken its role too far and should not be permitted to tell our Parliament what to do when it has decide to do the opposite. Notwithstanding the fact that it was our Parliament that agreed o abide by judgments of the court in the first place.

Who knows where that will end up, but the likelihood is that the Government will push forward a programme of reform at the court which is already in train, and therefore be seen to be “doing something” without actually making a huge amount of difference.

But what about deporting foreign criminals?

What Theresa May was really saying to the Sunday Telegraph was that she wants more powers to deport foreign criminals. Currently the European Court of Human Rights is supporting a broad interpretation of “family rights” under Article 8 of the ECHR. This is preventing the Home Office deporting people who it would like to, and there appears to be fairly broad consensus in the UK that it has got the balance wrong.

This bad feeling has been stoked by some mischievous reporting by the tabloids and the Daily Telegraph, but the concerns are genuine and shared by many lawyers who otherwise support the HRA.

So what happens now?

What happens now is that there will some posturing and plenty of appeals to those who want to reduce or remove the influence of Europe on our law. But primarily because of the Coalition Agreement, as well as the practical and legal difficulties of withdrawal from the ECHR, not much is going to change.

The reality is that Theresa May, along with the Prime Minister David Cameron, have set themselves narrow, achievable goals. The HRA is likely to be repealed at some time in 2013 to be replaced by a shiny new UK Bill of Rights, which will look different but drive very similarly. Those who think that some kind of fundamental rights convention or charter is actually a good idea, which includes most of our senior judges and the Liberal Democrats, not to mention the Barons who wrote our Magna Carta, will get their wish too. So rights protections will largely remain, but the nonsense is likely to continue.

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  1. Stephen says:

    “Our Government is concerned, with some justification, that the court has taken its role too far and should not be permitted to tell our Parliament what to do when it has decide to do the opposite. Notwithstanding the fact that it was our Parliament that agreed o abide by judgments of the court in the first place.”

    So, according to the logic expressed in the above extract, if the UK legislature legislated to physically exterminate a class or group of people within its jurisdiction then the Court should not be permitted to tell our Parliament what to do!? !?

    Surely, the point of Human Rights is to place limits on what the State, including the legislature, can do. Those who seek to qualify human rights and who promote parliamentary supremacy above the inalienable rights of man are treading a dangerous path. This path has been trodden once – and it led to Auschwitz and the other camps. In the context of Nazi Germany read for Parliament the Fuerher principle and the Nuremburg Laws.

    Would the Nuremburg Trials have been so controversial had the European Convention on Human Rights existed? We should not forget history and the origins of the ECHR when we seek to qualify, or to dilute, human rights even if it has become fashionable or expedient to do so.

  2. Via different routes we have both concluded that the likes of David Cameron and Teresa May are talking nonsense. I blogged Replace people’s human rights with politicians sound bites

    It is factually inaccurate to state that the HRA incorporates the ECHR into domestic law. For example, Articles 1 and 13 have not been incorporated. A diluted ECHR has been incorporated into the HRA. This is why further dilution is totally unacceptable.

    It is also wrong to state that a public authority cannot act in a way which breaches these human rights. Rather, public authorities should not. The Prisoners Votes Case is evidence that they have acted in a way that they should not have done.

    We already have a Human Rights Act minus. The ECHR set the minimum level and we have already sank beneath this. Lord Lester of Hearne Hill must accept some responsibility for this shambles. He was prepared to sacrifice guaranteed human rights for the doctrine of Supremacy of Parliament.

    I don’t know what planet Rosalind English is on but it is not planet Earth. The ECtHR and ECHR are inseparable.

    The ECHR is very clear that decisions of the Court are binding therefore this is another example whereby the HRA is weak. Before largely incorporating the ECHR into domestic law, judges only needed to take into account the ECHR and ECtHR rulings. Judges must be bound by the ECHR and ECtHR decisions. Rather than seeking to dilute the HRA, it needs strengthening up to ECHR standard.

    There is a strong line of Strasbourg case law starting with Hirst No2, followed by Frodl and Greens. Scoppola will go before the Grand Chamber. There is no need to add the rider of fairly sensible decisions. UK courts have not followed Hirst No2. My case did not go to the highest court in the UK because leave to appeal was refused. It is doubtful that the HofL would have found in my favour.

    There is an uneasy stand off between the Council of Europe and the UK. Instead of guaranteeing human rights this means that the CofE has joined in the abuse of convicted prisoners human rights along with the UK. Prisoners are not denied access to the courts but they are denied access to justice. In the 1970s prisoners rights lawyers posed the question ‘How do you get a court decision implemented?’. In 1990 Lord Woolf concluded that there is a lack of justice within prisons. Who is legally responsible for this sorry state of affairs and won’t take responsibility for remedying the situation? In the UK it’s none other than Kenneth Clarke, in Europe it’s the CofE. The Committee of Ministers is failing in its responsibility to effectively monitor the UK’s non compliance, and up the stakes by referring Hirst No2 back to the Court for a ruling on non compliance. Only then will we see if the CofE has the courage to invoke sanctions against the UK.

    There is absolutely no justification for the UK’s view that the ECtHR has taken its role too far. The 3 arms of the State are wrapped up within the UK in the court case named Hirst v UK (No2). Therefore, it is irrelevant what Parliament thinks. Parliament is just as guilty of human rights violations as are the Executive and the Judiciary. Parliament must remedy the breach or remain still in breach.

    The nonsense is the view that we have rights protection. Alex Bailin QC was right when he said in relation to Hirst No2 the HRA is toothless.

  3. ObiterJ says:

    PS: I have linked my recent post on Law and Lawyers to this post. Your post is a useful counterweight to my gloomy assessment.

  4. ObiterJ says:

    I think that I have a more pessimistic view of the coalition government’s plans. What matters to politicians more than anything else is “power.” The Lib-Dems are in power for the first time since Lloyd George – albeit a power they have to share with some people they basically dislike politically. They will not give that power up lightly and, let us not forget, the terms of the Fixed Term Parliaments Act 2011 will act as a brake on any attempt to destroy the coalition since the procedures in the Act require voting in Parliament to bring the Parliament to an end. No more backroom discussions to persuade the PM to “advise Her Majesty” to dissolve Parliament.

    The Lib Dems will know that they would need to be extremely careful about embarking on a strategy to bring the coalition down. After all, they will also know that a decisive election win in 2015 is probably unlikely for either the Tories or Labour. They will see themselves in another coalition even if they hop to another bed. For another party to even wish to share power with the Lib Dems a considerable degree of trust would be required. Would such trust exist if they had brought down the first coalition?

    What does this mean for a British Bill of Rights? I suspect that the Tories will want it to be a fairly minimalistic document so that the Bill constrains governmental power as little as they can get away with. The Lib Dems may well push for European Convention Plus but, rather than lose power, will probably accept less provided that it is presented in some face-saving way. Regrettably, I expect the outcome to be a tawdry document offering the British people little though Strasbourg will remain as a “long stop.”

    As for the EU, I rarely meet anyone nowadays who has much time for it. Whilst few members of the public know a great deal about its institutions and law, they always say that the “eurozone” problems are bad for the UK and we should either retake power back to Westminster or get out altogether. People have said this to me who, even a couple of years ago, were still essentially pro-Europe.

    A minimalistic UK Bill of Rights coupled with the severe cuts to legal aid will be disastrous for human rights protection in the UK. Westminster politicians at the moment are acting like “the proud enslavers of mankind” – (William Wordsworth “To the River Derwent”).

    I sincerely hope that my current pessimism is unfounded but I think the omens are bad.

  5. Interesting and optimistic analysis! More likely the Commission, which itself represents an agreement between the Coalition partners to disagree albeit via a Committee of ‘experts’, will report inconclusively, leaving Ministers and civil servants to draft genuine proposals, which they will be in no hurry to do. At best we will get a repeat of the exercise in the dying days of the last government. There will not be legislation before the next General Election, but the heat will be turned up and the issue will feature in the 2015 election manifestos with the Tories committing again to repeal the HRA and highlighting how only the Lib Dems stood in their way.

    The Commission is not as you say permitted to look at withdrawal from the ECHR, but that does not mean it cannot recommend ‘Human Rights Act minus’. The HRA is after all only a mechanism by which the ECHR is incorporated – it is not itself a requirement of the ECHR, nor a statement of rights. By amending the mechanisms a Bill of Rights would have a major impact on the quality of human rights protection in the UK without ever contemplating withdrawal from the ECHR

    Looking ahead then, an outright election victory for the Tories will see legislation brought forward quickly. It may prove to be a statement of rights in the UK ‘that incorporates and builds on all our obligations under the European Convention on Human Rights’ but it will not be the Bill of Rights which senior judges and the Lib Dems want as its primary objective will be containment. It will no doubt seek to limit the influence of ECtHR jurisprudence and to strengthen Parliamentary sovereignty by amending the powers of our domestic Courts (or appearing to). We might also anticipate repeal of s6 regarding the duties of public authorities. This would result in a manifestly different piece of domestic legislation to the HRA.

    To invert your car metaphor, the chassy – the articles of the Convention – would look much the same, but take a look under the bonnet and some of the most important parts of the engine – the mechanisms via which rights are protected – will have been ripped out.

  6. What is the likely impact of these changes in practice when it comes to prosecutions under human rights laws? Do you anticipate it being easier or harder to bring cases through the UK courts without the influence of Europe, and is there a greater danger of governmental interference in cases thus pursued?

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