In its 2015 pre election manifesto the Conservative Party promised to reform UK human rights law. Citing the notorious case of Abu Qatada, the manifesto declared that a Conservative government would scrap the Human Rights Act (HRA) and replace it with a ‘British Bill of Rights’. This would ‘break the formal link between British courts and the European Court of Human Rights (ECtHR)’ and make the UK Supreme Court the ‘ultimate arbiter of human rights matters in the UK’. Following the election the new Conservative majority government vowed to go ahead with its plans to repeal the HRA. However, in the Queen’s Speech these plans were somewhat postponed, with a mere promise instead to ‘bring forward proposals’ for a British Bill of Rights. Nevertheless, the HRA remains at risk and with it the rights of those most vulnerable in our society.
What is the Human Rights Act?
The HRA came into force in October 2000 and was designed to incorporate the rights enshrined in the European Convention on Human Rights (ECHR) into UK law. Introduction of the HRA meant that claimants would no longer need to go all the way to Strasbourg to enforce their rights (a process which takes many years) but could instead bring their claim before courts here in the UK. Rather than acting as a Court of First Instance, the ECtHR hence became a court of ‘last resort’. Under the HRA, it is unlawful for a public authority to act in a way which is incompatible with the ECHR (s6, HRA).
The HRA has often been subject to criticisms that it impinges on Parliamentary Sovereignty and renders UK courts bound by ECtHR decisions. In fact, a careful reading of the HRA reveals that both of these criticisms are misplaced. In drafting the HRA the legislators went to great lengths to uphold Parliamentary Sovereignty. If a UK court finds a provision of domestic legislation to be incompatible with the ECHR it may make a ‘declaration of incompatibility’ (s4, HRA). However, this declaration does not affect the validity or continuing operation of the provision in question. Similarly, under section 19 HRA, a Minister may continue with the introduction of a Bill despite its incompatibility with the ECHR. Therefore, judges have no power under the HRA to strike down legislation introduced by Parliament, even if such legislation falls foul of the ECHR. Nor are UK courts bound by the HRA to follow ECtHR decisions. Under section 2 HRA, courts and tribunals need only ‘take into account’ ECtHR judgments where relevant.
The European Court of Human Rights
Arguably one of the principal reasons for current hostility towards the ECHR system and the HRA is due to the perception that the system allows meddling by ‘those Europeans’ in our affairs. Similar arguments are used to condemn UK membership of the European Union (please note that the EU has absolutely nothing to do with the ECHR system). Firstly, it is important to reiterate UK courts are not bound by decisions emanating from the ECtHR (see above). Second, the statistics available demonstrate that in actuality, the ECtHR meddles in our affairs rather less than might be expected. In 2014, just 1% of applications made to the ECtHR against the UK were found admissible. Out of the 14 judgments which were given, the UK was found to have committed a violation of the ECHR in just 4 cases. Thirdly, to counteract accusations of meddling and demonstrate cultural sensitivity in judgments against States, the ECtHR employs the ‘margin of appreciation’ doctrine as regards many ECHR rights. Under this doctrine the Court accords States a margin of discretion in the fulfilment of their obligations. Therefore, arguments regarding European meddling seem unfounded.
The Criminals’/Terrorists’ Charter
Ever since its creation the HRA has been condemned as the ‘Criminals Charter’, permitting the rights of foreign criminals and terrorists to trump those of ordinary people in the UK. The principal concern being the alleged ease by which foreign criminals/ terrorists can avoid deportation by relying on human rights legislation. It is this myth which lies behind the government’s proposals to scrap the HRA. The fact is that human rights apply to everyone simply by virtue of being human. There is no hierarchy of protection dependent on a person’s characteristics, behaviour or even ‘social desirability’. Thus, terrorists and criminals have the same rights as you and I.
Nevertheless, there is no absolute, blanket prohibition on deportation of such persons based on human rights grounds. In fact, terrorists and criminals seeking to avoid deportation on human rights grounds often have to satisfy very high thresholds to prove their case. For example, under article 3 ECHR (prohibition of torture); States are prohibited from returning an individual to a country where they face a ‘real risk’ of torture. However, individuals seeking to rely on this provision must go beyond showing a general risk of torture to prove that they personally are at risk of torture in the receiving country (Vilvarajah v UK). If an individual meets this high threshold then the State is prohibited from deporting them and rightly so. How can any self respecting democratic State preach a commitment to human rights and at the same time return an individual ‘home’ to be tortured? However, it is only in exceptional circumstances that an individual will be able to rely on the HRA to avoid deportation.
A British Bill of Rights
What then would a so-called British Bill of Rights include? So far very little detail has been provided by the Conservative government as to what this Bill of Rights would entail. Nevertheless, several possibilities might be considered. At its very worst the Bill might entail complete withdrawal from the ECHR system. This would be disastrous for the protection of human rights in the UK, again requiring individuals to go all the way to Strasbourg (if they have the means) to enforce their rights. It would also set a bad example to States such as Russia who may also feel able to withdraw from the ECHR.
Second, a ‘milder’ version of the Bill is instead likely to tie rights with responsibilities, making some more worthy of rights than others. In the past the Conservatives have promised to ‘clarify’ the test for balancing the absolute prohibition of torture with deportation, and to prevent certain foreign nationals from relying on article 8 ECHR to prevent deportation. The question is do we really want the UK government, rather than the ECtHR defining human rights for us and determining who is and is not worthy of such rights?
In conclusion, what is clear is that a so called British Bill of Rights, far from strengthening human rights protection in the UK, would serve to roll back rights protection. It would tie rights with responsibilities and establish a hierarchy of protection whereby some individuals are more worthy of rights than others. This is a repugnant and unacceptable approach which would significantly curtail the protection of human rights in the UK. The HRA protects each and every one of us and we lose it at our peril.
Conservative Party, ‘Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’: https://www.conservatives.com/~/media/Files/Downloadable%20Files/HUMAN_RIGHTS.pdf#page=6
Conservative Party Manifesto 2015: https://www.conservatives.com/Manifesto
ECtHR, ‘Analysis of Statistics 2014’: http://www.echr.coe.int/Documents/Stats_analysis_2014_ENG.pdf
ECtHR, ‘Violations by Article and by State, 2014’: http://www.echr.coe.int/Documents/Stats_violation_2014_ENG.pdf