“We cannot go back”: debating the Human Rights Act – Eva Pils
15 May 2015
On 24 March, The Dickson Poon School of Law, King’s College London hosted a public debate on ‘The Human Rights Act: the Bill of Rights for the 21st Century?’ at Inner Temple. The panellists were Dr Colm O’Cinneide, Mr Martin Howe QC, Lord Phillips of Worth Matravers, and Mr John Wadham. Professor Aileen McColgan chaired.
Lord Phillips began by reminding us that King John never intended to respect Magna Carta, and that its most iconic sections were not the most prominent in the original document. He went on to point out that the UK’s ‘motive in participating’ in the European Convention of Human Rights ‘was the belief that other members of the Council of Europe should be under the obligations that it imposed.’ A ‘groundswell of dissatisfaction’ with the working of the Convention had led to critics portraying the Human Rights Act today – rather like Magna Carta in its infancy — as a disturbance to an historical order. The British Bill of Rights now proposed by the Conservative Party was
intended, as I understand it, to give the Supreme Court, rather than the Strasbourg Court, the last word in the correct interpretation of the Human Rights Convention. I have yet to see a draft of this; but in principle I am not in favour…Under the scheme of the Convention it is ultimately for the Strasbourg court to give authoritative rulings on its effect. I emphasise the word “ultimately”. Before according the Strasbourg Court that last word, there is room for dialogue.
Mr John Wadham addressed the Conservative Party’s calls for repealing the HRA in the context of the upcoming elections, arguing that measures against those designated as terrorists and foreign criminals that would become available under the proposed Bill would engage not merely convention rights but also other rights guarantees e.g. under the ICCPR and the Convention against Torture, and jeopardise particularly vulnerable individuals. ‘What human rights is about…is protecting people who are vulnerable or who are bad people whom no one else is going to support…That’s why … a simplistic version of democracy where Parliament rules and Parliament rules alone, is not adequate to protect our democratic values.’ It followed for Mr Wadham that ‘the bill of rights we have is the Human Rights Act, and the bill of rights we need is the Human Rights Act.’
Martin Howe QC strongly defended the Conservative Party proposals. The effect of the HRA, he argued, had been
to incorporate a whole mass of jurisprudence which in large measure is not domestic in origin.
Also, the introduction of the Human Rights Act had led to older common law roots of human rights jurisprudence being overlooked. The ‘radical process of adding and grafting doctrines onto the Convention’ had resulted, he said, ‘in a democratic and constitutional deficit.’
Were Britain to withdraw from the treaty,
the domestic rules that would then replace this, [would be] to incorporate the Convention into domestic law.
There would be some further additions to this incorporation, including the right not to be tortured and provisions on non-refoulement under Article 3 of CAT, ‘as part of an overall rebalancing exercise’. But ‘the ultimate position’ would be that Convention rights would be ‘reintegrated more fully, picking up and reinforcing the Osborne (Osborne v Parole Board (2013)) principle into domestic law.’ The Strasbourg Court would henceforth be placed
at a similar level, for example, to judgments of the higher courts of other Commonwealth or other common law countries on interpretation of similar rights to which our judges would be invited to pay the respect that they normally would. The intention is…to restore a situation where, like with other legislation, Parliament is ultimately supreme and ultimately can take the decision.’ In addition, ‘specific measures’ would be taken to ‘provide guidance to the courts in areas where Strasbourg jurisprudence has been extremely problematic.
The final speaker, Dr Colm O’Cinneide, passionately contested Mr Howe’s view. He acknowledged the UK system’s ‘slightly odd’ design in ‘borrowing’ the Convention rights system. However,
when people talk about this embedded tradition of rights protection in the UK there is an extraordinary vagueness. For example the common law rights that Martin was referring to—most of that jurisprudence dates back may twenty, twenty-five years.
Dr O’Cinneide also argued that ‘[c]ontrary to what the Prime Minister has said, the UK Supreme Court is supreme in the UK, subject to Parliamentary sovereignty, ‘and that the argument that Strasbourg jurisprudence was ‘in some way warped or odd….this is a fascinating myth. It has achieved extraordinary traction. And it is complete hogwash! (With due respect to Martin)’ he said. A ‘living instrument interpretation of the Convention had, he argued, become established practice from the 1970s. He concluded: ‘[The proposal] is careless in terms of the messages it conveys about rule of law, about convenience, about the attitude that countries should adopt toward international courts’ decisions…and I think it should be subject to a very, very serious scrutiny.’
The lively Q&A session that followed was concluded by Lord Phillips:
The question is, can we go back? Can we tear up the Human Rights Convention and go back? …I don’t think we can. We have a Parliament that is supreme. But we don’t want a Parliament that is completely supreme. We are talking about having our own Bill of Rights, but is that going to be an ordinary statute, or is it going to have some kind of constitutional overriding effect? I think the answer is, yes it is. We recognise that we cannot trust our Parliament without any inhibition to pass any act it feels like. If we had that situation, we’d have a lot of people locked up now without trial, because that’s rather more convenient than the degree of liberty that we are bound to give them.’
Read tweets from the event on Storify
Dr Eva Pils is reader in transnational law at the Dickson Poon School of Law at King’s College London.