Incoherent, incomplete and disrespectful: The Conservative plans for human rights – Angela Patrick

3 October 2014 by Guest Contributor

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. … Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.” Eleanor Roosevelt (1958).

For human rights to matter, they must be made real first, at home, in those small places that matter to us all. After almost four decades of debate, it was in this vein that the Westminster Parliament, with Conservative Party support, voted to “Bring Rights Home” in the Human Rights Act 1998 (“HRA”). As we wake this morning to the front pages of two national newspapers decrying human rights “madness” and welcoming freshly minted (but fairly familiar) Conservative Party policy plans to condemn the HRA to history, this is a good message to remember.

The proposals are incoherent in their consideration of domestic law, incomplete in their engagement with the devolved constitution and disrespectful to the UK’s commitments in international law. They undermine the cause of bringing rights closer to home and seemingly have no care for progress of minimum standards in the wider world.

What rights?

The proposals would “Put the text of the original Human Rights Convention into primary legislation” but “clarify the Convention rights, to reflect a proper balance between rights and responsibilities”

The rights guaranteed by the European Convention on Human Rights (“ECHR”) and the HRA provide a starting point. No new rights will be added (in the now familiar short hand, there will be no “ECHR plus”). However, new qualifiers would limit the substance of Convention rights recognised in domestic law.   In practice, this means rewriting – or undercutting – the Convention rights for domestic application: compiling an “ECHR minus” set of UK guarantees. The few examples given suggest that the rewrite could be extensive and could include changes to absolute inviolable rights protected by the ECHR and customary international law. For example:

• Revising the “real risk” test used to determine whether someone is at risk of torture on deportation “in line with our commitment to prevent torture and in keeping with the approach taken by other developed nations”: The UK argued this point before the European Court of Human Rights in Saadi, It is clear that there is no form of internationally acceptable test that will allow the lawful return of an individual to a real risk of torture.   If there is evidence that an individual faces a real risk of torture on return, should the UK seriously be seeking shortcuts?

• “Some terms used in the Convention rights would benefit from a more precise definition, such as ‘degrading treatment or punishment’.” Again, the example given targets the prohibition on torture, inhuman and degrading treatment and punishment in Article 3 ECHR. The examples given again refer to deportation cases. Yet, what would the drafters’ more precise definition include? Would, for example, leaving a disabled person in prison without care or support suitable to their needs be deemed acceptable? (See Price v UK)

• Only the “most serious cases”: The proposals would impose a new “threshold” to prevent courts considering “trivial” cases.

The ECHR and the HRA already recognise competing individual and community rights, recognising that proportionate limits to some rights are plainly justifiable to protect the public interest or the rights of others. The proposals are critical of this threshold and this provision is clearly designed to allow greater scope for authorities in the UK to act without consideration of individuals’ rights. It is altogether unclear what this might mean in practice, but it implies that an individual might have a valid claim that their rights have been violated but have a remedy refused. This echoes the suggestion of an earlier conservative Private Members’ Bill, which would have permitted violations of Convention rights which were deemed “reasonable” (see Clause 6).   Reasonableness, seriousness and triviality are all highly subjective concepts new to these proposals. Who would you trust to assess whether a violation of your rights was trivial?

Whose rights?

In line with international law, everyone within the jurisdiction of the UK benefits from the protection of the HRA. In very limited circumstances this includes some individuals within the responsibility of the UK but located overseas, including, in some circumstances, UK troops operating in theatre.

The proposals explain “The Convention recognises that people have civic responsibilities, and allows some of its rights to be restricted to uphold the rights and interests of other people. Our new Bill will clarify these limitations on individual rights in certain circumstances.” This would introduce further qualifiers designed to restrict the application of the new Bill to exclude certain categories of individuals or to offer lesser protection to some groups in some circumstances.   Examples are given in the text and the accompanying Press Release:

• “the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using human rights to prevent deportation”
• “Ensure that those who pose a national security risk to this country or have entered it illegally cannot rely on questionable human rights claims”
• “limit the ability of those who threaten British citizens or society to use human rights laws to protect their interests”

This sliding scale of eligibility for rights protection erodes the nature of unalienable, universal human rights. As the Joint Committee on Human Rights explained in its 2007 report on a Bill of Rights for the UK (see paras 264 – 267):

Human rights are rights which people enjoy by virtue of being human: they cannot be made contingent on the prior fulfilment of responsibilities.

Expressly legislating to prevent the application of domestic law to troops operating in theatre would leave soldiers – in the limited circumstances they may have a claim – to go to Strasbourg for a remedy. Removing the remedy at home will not change the scope of the Convention.

Any of these substantive changes could mean that a person could have a perfectly valid right under the Convention but no enforceable right in domestic law. Applicants to the European Court must exhaust all effective domestic remedies before taking the road to Strasbourg (Article 34). If a remedy is clearly excluded in domestic law, it cannot be considered effective. An unintended consequence of these changes might be that more frequently individuals could leap-frog the domestic courts entirely. Ironically, the impact of these limitations could be to limit the engagement of domestic courts in the development of Convention law in precisely those cases which its critics find politically difficult.

Who decides?

“The UK Courts, not Strasbourg, will have the final say in interpreting Convention Rights”

There is nothing in the HRA that binds the UK Courts to apply Strasbourg jurisprudence. Section 2 of the Act requires judges to “take into account” case-law from Europe, nothing more. While individual judges have historically interpreted this obligation restrictively, this interpretation is outdated and domestic judges are increasingly confident in their ability to depart from decisions from Strasbourg. The proposals would repeal this obligation.   It is unclear whether judges will retain full discretion to consider Strasbourg jurisprudence or other comparative material should they choose, or whether a new restriction will be imposed.

Domestic courts’ duty to interpret the law compatibly with Convention rights (section 3 HRA) would be removed.   This suggests that the primary power of domestic courts under a new Bill would be declaratory. An increased number of declarations of incompatibility would place greater responsibility on Parliament to respond (Parliament, thus far has never failed to respond to a declaration made under the HRA). However, if a declaration is the only remedy available, there is clear case-law to suggest that a domestic claim needn’t be pursued before a claim at Strasbourg (Burden v UK). An individual applicant might see little benefit in the expense of pursuing a domestic declaration which will have no immediate impact on their circumstances.

Is it all about the judges?

Some of the most important features of the HRA have nothing to do with judges, whether domestic or international. Its responsibilities are tripartite, with clear roles for Government, Parliament and the judiciary.

Section 6 of the Act places an important duty on all public authorities to respect our rights in discharging their functions. This replicates constitutional limitations on public power the world over. No equivalent is addressed in these proposals.

Section 19 of the HRA requires Ministers to certify that legislation presented to Parliament is Convention compatible. This section provides the foundation for enhanced legislative scrutiny performed by the Parliamentary Joint Committee on Human Rights. While the proposals explain “Parliament will consider the Convention rights set out in the law in all the legislation it passes”; no Ministerial duty is considered.

The proposals will revise the Ministerial code to “remove any ambiguity” about the duty of Ministers to act in accordance with the will of Parliament.   The current Ministerial code makes clear that Ministers are intended to discharge their duties in a manner consistent with the international obligations of the United Kingdom. This proposal appears to give lie to the true intention of the proposals. Not to enhance the role of Parliament, but to ease the limits on executive action.

The proposals promise to “End the ability of the European Court of Human Rights to force the UK to change the law.” They elaborate: “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. It will only be binding in UK law if Parliament agrees that it should be enacted as such.”

There is nothing in the HRA which requires the domestic courts or the UK Parliament to act on a decision of the European Court. The HRA expressly preserves parliamentary sovereignty by ensuring that domestic courts decisions are limited to “declarations of incompatibility” (Section 4, HRA). Incompatible legislation remains in force – with continuing effects on the lives of the individuals affected by it – until Parliament chooses to act. While the HRA provides a parliamentary procedure – the remedial order – to allow Parliament to consider a fast-track response to Strasbourg decisions (Section 10, HRA), there is nothing in the Act that requires any judgment to be formally considered.

This package of measures seems destined to deter individuals from pursuing a remedy at all. Domestic courts’ ability to provide a remedy will be constrained. Leapfrogging the domestic courts to secure a decision at Strasbourg could lead to an interminable negotiation on whether the judgment should be considered ‘advisory’ or binding. On both counts, making it more difficult for people in the UK to hold Government and public agencies to account.

Article 46 of the ECHR places a binding international law obligation on the UK to implement the adverse judgments of the European Court of Human Rights. However – as the prisoners’ votes saga illustrates – this process can involve a significant degree of political discretion on the part of national parliaments in respect of how and when they respond.

By declaring that all – or at least some – judgments will be considered non-binding, these proposals create an inevitable clash with the requirements of Article 46. These measures seem designed to provoke a crisis for relatively little return.

The Nuclear Option?

A Conservative Government would negotiate with the Council of Europe to secure recognition that this “new approach is a legitimate way of applying the Convention”. If an agreement is not reached, it will withdraw from the ECHR. This has unavoidable echoes of the commitment on the EU. The terms of this new “approach” make accommodation infeasible.   The option to carve out exceptions to the rights protected and to “pick and mix” the judgments we accept would undermine the Convention system entirely.

The proposals cite the example of the German management of constitutional conflict within the Convention system as a comparator. The comparison is not a helpful one. The German constitution has grown up alongside the ECHR and there is no evidence that it has ever taken steps to expressly disavow its obligations to meet the standards by which all Council of Europe members are bound. In the last Parliament, the then Secretary of State for Justice told Parliament:

“The standard of protection given to individuals by the German Basic Law is greater, and less flexible than that given by the ECHR. As such, decisions made by the German Court are therefore rarely overturned by the European Court of Human Rights because they do not fall below the minimum floor of rights which the ECHR seeks to establish” (See paras 39 – 40)

By design or naiveté, withdrawal seems the end goal of these proposals. The Council of Europe will not accept the clear circumvention of Article 46. Withdrawal from the ECHR – and the Council of Europe – would put the UK in the company of Belarus. The only known example of a modern democracy publicly downgrading their commitment to international human rights standards is Venuzuela, which took similar steps to avoid the scrutiny of the Inter-American Court of Human Rights. The question is whether a future Conservative Government would see the UK painted as the Venuzuela of Europe?

The Bigger Picture

The proposals give cursory consideration to the relationship between the HRA and the ECHR, wider domestic constitutional law, EU law and the wider international obligations of the United Kingdom:

• How British is the Bill? In short, we just don’t know. The proposals explain that the goal is to negotiate a settlement which respects existing arrangements for devolution. Aileen McHarg, in this blog, has already dissected the difficulties that the proposals pose for our devolution settlement. Does the Conservative Party envisage a Bill which only relates to reserved matters or do they plan to unpick the devolution arrangements in Scotland, Wales and Northern Ireland? While the first option could lead to police officers subject to different standards depending on the offence under consideration, the latter could undermine the Good Friday Agreement. JUSTICE highlighted these problems before the last election. In light of the proximity to the independence referendum, it appears constitutionally blinkered to fail to grapple with the geographical extent of the proposals.

• Greater focus on EU rights under a British Bill? Whole papers will have been written on the implications of these proposals for our relationship with not just the Council of Europe, but the EU. However, if these changes are implemented, people with a complaint in EU law may find greater protection in our domestic courts relying not on the somewhat more limited protection of the would-be Bill of Rights but on the application of the 1972 European Communities Act and the direct effect of the EU Charter.

• Beyond Europe: Many of the substantive changes proposed will directly engage the wider international obligations of the United Kingdom. For example, lowering the threshold for deportation fails to consider that the relevant ECHR obligations in mirror those in the UN Convention against Torture and in the International Covenant on Civil and Political Rights. Yet, nothing in the proposals address the constitutional significance of acting inconsistently with these binding treaties voluntarily entered in good faith.

The majority partner in the coalition Government is sending a global message that national parliaments – and by extension, the popular majority – should have the first and last say on human rights standards. If this selective approach to international human rights standards works for us, it also works for Moscow, Tehran and Beijing. Our Government might seek to carve out special exceptions for criminals, alleged terrorists or violators of planning legislation; another might direct their courts to refuse protection to dissidents or journalists. It is difficult to see how the UK might credibly object. That is not only damaging to the reputation of the UK, but to the viability of international human rights law.

The case for change

The paucity of the case for change has been dissected at length both in this blog and elsewhere.

The small handful of cases which the UK Government has found politically, if not legally, difficult cannot be used to justify sweeping constitutional change. There will always be hard cases. Any human rights instrument which didn’t create tension for Government wouldn’t be doing its job.

The European Court of Human Rights is accused of “mission creep”; using the doctrine of the “living instrument” to expand the reach of the Convention. This criticism would see the Convention frozen for all time in 1950, neglecting to protect the rights of disabled and homosexual people, continuing to sanction laws on legitimacy and refusing to consider the issues raised by the DNA database.  As common lawyers, we should shy away from encouraging such a formalistic, literal approach to the law.

Conclusion

Between this eight page outline and a major constitutional shift lies the ballot and the dispatch box. Several members of the cabinet lost their jobs in order that these proposals could make it to print, including the Attorney General and a former Lord Chancellor.  If these proposals were ever to be placed before Parliament, they’d face a rough ride in both Houses, with no guaranteed welcome even from the “blue” benches.

This new packaging may be politically attractive to some, but constitutional changes should be carefully considered not actively mis-sold. That the Prime Minister failed to publish these proposals for consideration by the membership during the party conference says much about the party leadership’s commitment to consult on the substance of these measures.

The plans appear legally and politically unworkable. If they were to be implemented, the offer on the table seems a rough deal. Not bringing rights close to home, but closer to Government. Not bringing rights home, but bringing rights to heel.

We must all be concerned citizens.

Angela Patrick is the Director of Human Rights Policy at JUSTICE. Full information on JUSTICE’s response to the Bill of Rights debate can be found here. For further information about the work of JUSTICE see www.justice.org.uk or follow @JUSTICEhq.

On 20 October 2014, JUSTICE will host its Annual Human Rights Law Conference. 6.5 hours CPD with leaders in the field and debate with representatives of all three main political parties. Book your place, now: