Where next for the Human Rights Act?

The Human Rights Act was introduced by the Labour Government in 1998 in order to “bring rights home” and enjoyed cross-party support at the time.  Essentially, it allows anyone in the UK to rely on rights contained in the European Convention on Human Rights before the domestic courts.

The 1998 Act has proved controversial; and while it is still supported by the Labour Party and the Liberal Democrats, the Conservative Party has long been committed to replacing it with alternative legislation.  Prior to the 2010 General Election, the Conservative election manifesto promised to repeal the Human Rights Act and introduce a UK Bill of Rights, in order to “protect our freedoms from state encroachment and encourage greater social responsibility.”

Concerns over both the Human Rights Act, and latterly the jurisdiction of the European Court of Human Rights itself, have a number of causes.  The principal concerns of critics focus on two discrete issues: the impact of human rights laws on Parliamentary sovereignty; coupled with the fact that a perception has developed that human rights laws have been abused by various litigants.  These include foreign national prisoners who cannot be deported (although it is worth noting that this is sometimes due to EU law obligations, rather than the European Convention on Human Rights, and the two are frequently conflated by the media); the contentious issue of prisoner voting; and, various tensions when suspected terrorists rely on Convention rights.

Following the 2010 election, the Conservatives were unable to persuade their coalition partners to introduce legislation to abolish the Human Rights Act.  Instead, the coalition parties agreed to establish a Commission on a Bill of Rights, which reported in December 2012.  The Commission failed to reach a consensus and there have been no significant developments towards a Bill of Rights since its report.

However, under the current Government, there has been a twin track approach; and there have been some relevant developments on the Convention system itself.  During the UK’s Presidency of the Council of Europe, these culminated in the Brighton Declaration, which built on earlier reforms.  Then Justice Secretary and Lord Chancellor, Ken Clarke, stated that the Declaration would bring a number of benefits, including:

  • Amending the Convention to include the principles of subsidiarity and the margin of appreciation (this is about the appropriate role of the Strasbourg Court – for an explanation of these terms see: House of Commons Library Standard Note 6277, The UK and Reform of the European Court of Human Rights);
  • Amending the Convention to tighten the admissibility criteria – so that trivial cases can be thrown out and the focus of the Court can be serious abuses;
  • Reducing the time limit for claims from six months to four;
  • Improving the selection process for judges;
  • Setting out a roadmap for further reform.

Recent reforms to the court appear to have cut the significant backlog of cases before the European Court of Human Rights.  Nonetheless, they have not satisfied some critics of the Convention system and have not dealt with underlying issues relating to Parliamentary sovereignty.  These have not only been raised by politicians.  Questions have also been raised by senior UK judges, such as the former Law Lord, Lord Hoffmann and more recently, the former Lord Chief Justice, Lord Judge.  The latter argued, in a speech delivered in December 2013, that:

[I]n our constitutional arrangements Parliament is sovereign. It can overrule, through the legislative process, any decision of our Supreme Court. In relation to the Strasbourg Court, and the Convention, is this principle negatived by our accession to the treaty obligation contained in Article 46 [of the European Convention on Human Rights]? Do we, can we, accept the obligation recently announced in [the case of] Del Rio Prada that when a [relevant] case arises, our Parliament must take “general measures in its domestic legal order to put an end” to the violations found by the European Court? Can that possibly be required if Parliament disagrees? For me the answer is, of course not. But these observations clearly indicate the intended route, and the future is long as well as short.

This question has been highlighted by the debate on prisoner voting.  In 2004, the Grand Chamber of the European Court of Human Rights determined (in Hirst v United Kingdom (No. 2) (2005) ECHR 681) that the UK Government had breached Article 3 to the First Protocol to the Convention by imposing a blanket ban on prisoners voting.

This finding has never been addressed substantively by the UK Government – although a Parliamentary Committee was established in 2013 to consider a variety of proposed responses.  The Committee concluded, amongst other things, that:

A refusal to implement the Court’s judgment, which is binding under international law, would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow.”

Accordingly, the Committee recommended that “the Government introduce a Bill at the start of the 2014-15 session, which should provide that all prisoners serving sentences of 12 months or less should be entitled to vote”; and moreover that “prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.”  The Government has not indicated whether it agrees with the Committee’s recommendation; but no legislation has been forthcoming.

At the recent Conservative Party Conference, the Prime Minster, David Cameron recommitted the party to a manifesto pledge on a Bill of Rights.  He said of the Convention that:

When that charter [the ECHR] was written, in the aftermath of the Second World War, it set out the basic rights we should respect. But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong. Rulings to stop us deporting suspected terrorists. The suggestion that you’ve got to apply the human rights convention even on the battle-fields of Helmand. And now – they want to give prisoners the vote. I’m sorry, I just don’t agree.  Our Parliament – the British Parliament – decided they shouldn’t have that right.  This is the country that wrote Magna Carta… the country that time and again has stood up for human rights whether liberating Europe from fascism or leading the charge today against sexual violence in war. Let me put this very clearly: We do not require instruction on this from judges in Strasbourg.  So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights to be passed in our Parliament rooted in our values … and as for Labour’s Human Rights Act? We will scrap it, once and for all.”

By contrast, the Shadow Justice Secretary, Sadiq Khan, has recently announced that Labour remained committed to the Human Rights Act and at a fringe event at their party conference said that he would be minded to introduce additional rights.

In a recent article in the Guardian, he said “walking away from the Convention and the European Court of Human Rights would be a betrayal of our history, and a betrayal of the British people’s rights it protects.”

Prior to the Prime Minister’s speech, the former Attorney General, Dominic Grieve QC, also questioned whether attempts to limit the jurisdiction of the European Court of Human Rights might lead to the UK breaching its obligations under international law.

The precise formulation of the Conservative plans to limit the jurisdiction of the Strasbourg Court are not yet clear; but all of this demonstrates that the role of human rights laws in British society will be a key dividing line between the parties at the next election.

Author: Alexander Horne

Picture Credit: Strasbourg France by barnyz; Creative Commons Attribution 2.0 Generic (CC by 2.0)