Apocalypse soon? The UK without the European Convention on Human Rights

17 May 2013 by Jim Duffy

Updated, 19 May 2013 | Last night, lawyers, academics, NGOs and even the President of the Supreme Court gathered in a basement conference room in central London.  Their purpose was to discuss the UK “without Convention Rights”, a possible future that some might view as post-apocalyptic, and others as utopia.  Either way, given recent political developments, the event could not, in the words of the Chair, Lord Dyson, “be more timely or topical.”

The seminar was hosted by city law firm Freshfields Bruckhaus Deringer LLP and presented by the Human Rights Lawyers Association and the Bingham Centre for the Rule of Law.  Lord Dyson, who is the Master of the Rolls (the second most senior judge in England and Wales), introduced three speakers:

• David Anderson QC, the Government’s Independent Reviewer of Terrorism Legislation since 2011;
• Professor András Sajó, the Hungarian Judge at the European Court of Human Rights; and
• Professor Hugh Corder, Professor of Public Law at the University of Cape Town.

Lord Dyson began by warning that human rights in this country are under attack, “not least from some members of the government” who he said had recently made “intemperate remarks”.  He described how calls for repeal of the Human Rights Act (HRA) or pulling out altogether from the European Convention system had been fuelled by a few high profile cases, not least that of Abu Qatada.  This was all said by some to be the fault of “those terrible judges in Strasbourg who have no common sense and don’t understand our culture and values.”

The event also coincided with the work of the Commission on a Bill of Rights, which reported in December 2012 on whether the UK should supplement or replace the human rights regime as embodied in the Convention and HRA with a separate Bill of Rights.

David Anderson QC

Update | David Anderson QC has kindly allowed us to post his excellent PowerPoint presentation which you will see at the bottom of this post (direct download here – PDF)

Anderson noted that the idea of a UK without Convention rights was no longer simply “an academic counterfactual.”  He made clear at the outset that he was strongly opposed to withdrawal from the ECHR or abrogation of the HRA.  The latter option had been “sedulously debated for many years but considered to be without merit by almost everyone who had looked at it”.

Less consideration had been given to pulling out of the Convention altogether, and that option had expressly been excluded from the remit of the Bill of Rights Commission.  The “lazy counter-argument” to withdrawal would be that the UK would be forced to withdraw also from the European Union, but this, he said, was not a complete or sufficient response; indeed for some it may provide an incentive.

For Anderson, the HRA had proved “successful on all counts”.  Schedule 1 to the Act contains what is a conservative collection of mostly civil and political  rather than social and economic rights, and the Act does not even impose a general equality duty.  It has not – as was feared – politicised or over-exposed the judiciary; indeed Anderson could only think of one decision of the higher courts under the HRA that had caused particular controversy – the Supreme Court’s declaration of incompatibility under section 4 in R (on the application of F and Angus Aubrey Thompson) v Secretary of State for the Home Department [2010] UKSC 17 on the need for a procedure to have oneself removed from the Sex Offenders Register.

The Act has also had a salutary effect upon policy formulation and execution and has encouraged judicial dialogue between our own courts and Strasbourg.  That dialogue could be seen in cases such as Al-Khawaja. The HRA has meant that we frequently have our own judges applying the provisions of the Convention, and we believe that they are as good as the Strasbourg judges and – as the European Court often comments – better placed to understand the situation on the ground.

Anderson commented on the Conservative-led majority report of the Bill of Rights Commission.  It stressed that the Bill should have “at its core” the rights currently in the ECHR, in addition to a free standing anti-discrimination provision and a right to trial by jury.  That, he said, was “not such a frightening prospect.”  The main concern of the majority was in fact presentational – that the Bill be written in language that reflected the UK’s culture and values.

In defending the continuing role of the Convention in UK law, some might feel it is enough to say that the European Court’s rulings are better than those of the Supreme Court.  That, Anderson said, was unlikely to command general assent.  The better argument was an international one, that governments in Russia, Ukraine, Georgia and Turkey currently wish to at least be seen to establish Convention-compliant systems, and the Abu Qatada case shows how standards laid down in Europe can be influential elsewhere.  A UK withdrawal would have a damaging effect upon the approaches of foreign states to human rights.

Judge Sajó

Judge Sajó made clear that he was speaking in his capacity as a professor at the Central European University in Budapest, and not on behalf of the European Court.

He stressed that even where European judges disagree with their British counterparts, they do so on the basis of respect and as part of what he described as “a very complex interaction.”  He commented that Winston Churchill understood the emerging human rights system post-World War II as one in which countries were at risk when left on their own.  By pulling out of the Convention, Judge Sajó predicted that Britain may lose its moral and political influence.

He commented on recent cases involving the deportation of foreign criminals and drew parallels between the reactions to such cases in the UK and in other states, such as Switzerland.  Certain political groups, he said, believe that judgments in deportation cases threaten state sovereignty, even though in reality the minor crimes that they often involve do not actually raise any truly sensitive political or moral issues.

Sajó explained how in certain cases, whilst a state that finds itself on the end of an adverse Strasbourg judgment might not implement changes in national law, the Court’s findings can still lend vital support to forces within that state.   He gave the example of Lithuania, which has so far refused to recognise transgender rights despite a defeat in Strasbourg.   In a context in which the UK had its own adverse judgments and then changed the law to recognise transgender rights, the transgender community in Lithuania could draw some support from what the European Court had told their government.  If the UK pulls out of the Convention, Judge Sajó said, “the moral support given to such forces will become irrelevant.”

As for criticisms of the European Court’s inefficiency and its backlog of cases (128,100 according to the Court’s 2012 Annual Report), Sajó pointed out that contracting states had not increased the Court’s budget for seven or eight years. Meanwhile its caseload had quadrupled.  From this he concluded, “European states do not wish to have a more efficient system”.

Professor Corder

Speaking from a South African perspective, uppermost in Professor Corder’s mind was a concern for maintaining and strengthening of the rule of law.  The wickedness of past imperial and apartheid regimes had instilled in most of the population of his country a determination that the unbridled exercise of state power should not be tolerated.  But “memories fade”, he said, and one is left to rely upon legal instruments and their impartial and consistent application through the courts.

Professor Corder described how the Constitution of South Africa (which he helped draft) enshrines the role of international law in a number of ways.  It provides at section 232, for example, that customary international law is South African law unless inconsistent with an act of parliament.  Most importantly, section 233 provides that, when interpreting any legislation, a court “must” prefer any reasonable interpretation that is consistent with international law over an inconsistent one.  This provision was influential in setting aside the death penalty and corporal punishment in the post-1994 era.

Corder pointed to developments within the Southern African Development Community (SADEC), whereby Zimbabwe had tried to evade a judgment of SADEC’s tribunal that declared unlawful the government’s attempts to take private property into state hands.  Its attempts to undermine SADEC should give pause to those who argue for UK withdrawal from the European Convention.  Withdrawal by one member may encourage less compliant member states with more to hide to do the same.  This, he said, would work to the disadvantage of citizens, visitors and to the overall level of human rights protection regionally.

He also pointed to the broader international impact that UK withdrawal might have.  In many sub-Saharan countries, accession to international human rights treaties had resulted from hard-fought battles by civil rights leaders.  There remains a widespread perception that international instruments recognising, for example, gay rights are “un-African” and targeted at developing countries.  Professor Corder asked how much stronger those perceptions would be if the “imperial master” – a permanent member of the UN Security Council – withdrew from its own international human rights obligations.

Professor Corder commented briefly on Theresa May’s March 2013 speech in which she said:

“We need to stop human rights legislation interfering with our ability to fight crime and control immigration.”

The close juxtaposition of “fighting crime” and “controlling immigration” would, Corder said, excite in South Africa the sort of reaction that he imagines it did in the UK.

Conclusion

This was a thoughtful and at times passionate defence of the HRA and the UK’s continued role within the Convention system.  At the same time, it was noted that the speakers were to a large extent preaching to the converted – only one contribution from the floor suggested that Convention withdrawal might be a good thing on the basis that the UK might come up with something “better”.

Many in the audience were interested to hear how a positive case could be made to a reactionary public disillusioned with what The Daily Mail recently described as a “Charter for killing grannies”. Lord Dyson thanked the speakers for prompting us to think about the effect repeal of the HRA or withdrawal from the Convention would have beyond these shores.  But it was pointed out from the floor that many of the opponents to the present legal framework may be unlikely to view a possible impact upon the lives of those abroad as a compelling argument for retaining the status quo in UK law.

However, as Professor Corder pointed out, “powerful groups can become marginalised”.  Some might not value a strong human rights framework until they themselves have to seek to rely upon one. The challenge for those who argue that the HRA and Convention ought to remain central to UK law is to convey such messages during a debate which – in the words of the Commission on a Bill of Rights – has  too often been characterised by “stereotypes and caricatures.”

For David Anderson QC,  “there has been no better or more necessary time to make that case”.

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Read more:

• What would happen if the UK withdrew from the European Court of Human Rights?
• Setting a trap for the European Court of Human Rights over foreign criminals
• A human rights reality check for the Home Secretary – Dr Mark Elliott