Human Rights are essential to any democratic and civilised society and establishing a system to protect them is vital, especially if that system is there to protect the citizen against the machinery of State. So far, so good.
But almost from the moment that the European Convention came into existence in November 1950, a process which inextricably led to the Human Rights Act 1998, the British Government has been expressing incredulity that it should have the temerity to apply to the UK.
Writing in 1956, Sir Hilton Poynton of the Colonial Office prefaced a document,
“recognising that we have got ourselves committed to this wretched Covenant and can’t get out of it now.”
Yet now, probably for the first time since Sir Hilton bemoaned our association with the Convention there is substantive debate about whether the Human Rights Act and European Convention on Human Rights (ECHR) are fit for purpose and whether they should be replaced by a British Bill of Rights.
The debate about Human Rights in the United Kingdom goes way beyond ‘Brexit’ and whilst the rhetoric from various politicians about withdrawing from the European Convention on Human Rights [ECHR] might attract tabloid headlines, it really does not do this vital issue any sort of justice.
The Conservative Party has been ‘gunning’ for the Human Rights Act 1998 for years. They want to replace it with a British Bill of Rights. Referring to the Act as “Labour’s Human Rights Act” puts it in the centre of that political target.
But it would be wrong to think that the debate between keeping the Human Rights Act, replacing it with a Bill of Rights and withdrawing from the ECHR is purely played out down political affiliations. There are nuances to both arguments which are sometimes missed amongst the colourful, if misleading political rough and tumble and sound bites.
Sometimes, it is helpful to get back to basics.
It is common ground that Human Rights are vital in any democratic society and so it is equally accepted by all sides of the argument that we have to establish a system to protect them.
If we are to revoke the Act or remove ourselves from the ECHR the argument will only be won by convincing us, firstly, that the present regime is abusive, secondly, that the alternatives present an improvement, often defined as reasserting British Parliamentary Sovereignty and thirdly that in any event, many of the protections afforded by the Human Rights Act and the ECHR only apply to the disreputable or disgraced members of society, for instance prisoners and immigrants.
In fact, in recent years the most thoughtful and pertinent arguments have been eloquently adumbrated by two prominent Judges in the UK Supreme Court, Jonathan Sumption, recently elevated and Lord Neuberger who’s recent speech in Melbourne, Australia reasserted, in his view, the importance of the Human Rights Act and the Convention.
Back in 2011 Sumption observed in the F.A. Mann Lecture that the incorporation of the ECHR, into English law, through the Act, significantly shifted the boundaries between political and legal decision making, some of which raise major political issues such as immigration, penal policy, security, policing, privacy and freedom of expression. He continued that by giving legal effect to the Convention, we have transferred it out of the political arena altogether and into the domain of judicial decision making where public accountability has no place.
In essence, Sumption argues that the court in Strasbourg which decides upon ECHR cases is not democratic and has deprived the UK Parliament of its powers.
The reference to “unelected judges” is interesting, particularly as the UK has precisely that, properly justified as removing any perceived or real influence upon the judiciary to come to rulings as a result of inappropriate pressure that an elected position may bring.
But Sumption is not a lone voice on the ‘democratic deficit’ argument. The former Lord Chief Justice, Lord Judge recently wrote in the Bar trade magazine, ‘Counsel’ that the European Court of Human Rights was undemocratic and undermined the sovereignty of Parliament in favour of unelected judges. Lord Judge is consistent, having previously stated that the Human Rights Act should be amended to ensure that British Courts are not inferior to Strasbourg.
Perhaps the crux of all the anti-Europe arguments is the view that Strasbourg has simply gone too far, as Baroness Hale suggested last year, has over stretched itself.
The ECHR came into existence in the early 1950’s with the intention of stabilising Western Europe after a devastating World War and the threat of dictatorships and authoritarianism. It was also intended to meet the challenge of the Soviet Union and the advance of Soviet Communism. Since then there is a growing perception, even amongst senior members of the judiciary that it has over-stepped its brief and extended its influence into issues of which it has no business to be involved in.
The real catalyst for this and referred to specifically by Lord Judge, was whether UK prisoners should have the vote. As is often the case, the Strasbourg ruling has been widely misrepresented. It did not tell the UK to give every prisoner the vote, it said that the ‘blanket ban’ on all prisoners was in breach of Article 3 of the Protocol 1 [free election] but critically, the court said that the matter fell to the National Parliament to determine. Hardly a Strasbourg directive that Wandsworth, Brixton and The Scrubs should be filled with ballot boxes.
Taking this argument at its highest, is this a reason to repeal the Human Rights Act, let alone withdraw from the protection afforded to citizens by the ECHR? Many believe that it is little more than a controversial topic to be discussed over a pint, after work.
Baroness Hale has also expressed the ‘mission creep’ concerns about Strasbourg, although she still maintains that fellow judges would “regret” any decisions by a future government to repeal the Act. What she might have added is “let’s get some perspective on the argument”, emphasising in a speech at the LSE in 2013 that the existence of the Human Rights Acts forces courts to work out what is and what is not compatible with the ECHR which “has brought great benefits to the law and to a great many people.”
On the different question of whether the UK should pull out of the ECHR she highlights that this would necessitate the UK leaving the 47 member Council of Europe and the EU, acidically concluding “so I leave it to the politicians to decide whether that would be a price worth paying for it becoming easier to get rid of certain unpopular foreigners.”
Her conclusions are sound, the ECHR is a central Treaty of the Council of Europe, and no country could be a member of the Council that had not signed up to that Treaty, furthermore, no country can join the EU unless it is a member of the Council of Europe. The precedent for allowing a country to be a member of the Council but not subscribing to the ECHR would be intolerable.
In fact, the substantive attack on Strasbourg seems to be not against the general principles of the ECHR, but as Sumption puts it,
“…the Strasbourg Court have derived…by a process of implication and extension a very large number of derivative sub-principles and rules, addressing the internal arrangements of contracting States in great detail. Many of those sub-principles and rules go well beyond what is required to vindicate, the rights expressly conferred by the Convention.”
Sumption argues for special treatment for different countries in particular the UK, where he asserts that there is no reason why the protection of Convention rights should necessary require the same measures in the UK which “has for many years enjoyed a strong tradition of public service, a high degree of participation in public life, functioning, democratic institutions and an independent judiciary, as they do in countries like say, Romania, Russia or Turkey…”
In other words, the built in margin of appreciation which already operates between different States when it comes to the interpretation of the ECHR should be made even more distinct, with particular reference to the UK. We should be getting special treatment, or more accurately, more special treatment than we already get.
So what are the alternatives and does a British Bill of Rights provide the answer to any of these criticisms?
Interestingly, many of those who have misgivings about the Human Rights Act and the ECHR do not think that a Bill of Rights is the panacea for all their ills.
Presently we live in a country which has no written constitution but enjoys Parliamentary Sovereignty. A judge cannot quash any statute enacted by the legislative and any decision made by a judge can be overturned by a simple majority in Parliament. That is still the case under the Human Rights Act. The Act is subordinate to the doctrine of absolute Parliamentary Supremacy.
Conveniently, a significant number of Bills of Rights around the world, unlike the Act do give courts power to strike down legislation and so it should not be assumed in the absence of particularity that a Bill is any more democratic that the Act.
All Strasbourg can do under Section 4 of the Act is to issue a declaration of incompatibility, that a domestic law is incompatible with Convention jurisprudence. Parliament is asked, although not legally bound by the Human Rights Act to remedy it.
In acknowledging that the Strasbourg Court does have significant influence upon domestic legislation, although no strike out powers, the court acts as a check on the domestic Executive, rather than as the academic, Francesca Klug succinctly put it “a primary law maker”. Reminding ourselves that amongst the nominated judiciary to the court there is able and active British representation, such a check upon Executive decisions should be seen as reassurance, rather than an unpalatable conflict. Surely we are not so naive to think that an unchecked government cannot seriously misread public opinion and at a time when the present government are attempting to restrict the UK citizens access to domestic Judicial Review to challenge executive decisions, removing yet another route to challenge Ministers is cumulatively undesirable.
A little over twelve months ago, Lord Neuberger told a conference at the Supreme Court in Melbourne, Australia that references to ‘unelected’ judges, the concentration on prisoners votes and asylum seekers had turned the Act into “something of a whipping boy”.
This timely and refreshing observation by one of the most respected judges of his generation, a Former Master of the Rolls and eminent Law Lord nails the public perception problems which the Human Rights Act and consequently, the ECHR are undoubtedly saddled with.
Years of inaccurate and at times hysterical and alarmist criticism of Human Rights Laws in popular newspapers, echoed by anti-European politicians has, without doubt concreted deep suspicions and distrust in the popular mind. Despite the fact that most of it is without foundation, evidenced statistically by the fact that the vast majority of domestic UK court judgements are upheld in Strasbourg does not seem to deter those who attack the Act and the Convention.
Of course, the reality is that much of the vitriol thrown at Human Rights has nothing to do with its ability to protect the citizen, rather that it is deliberately misrepresented as being ‘foreign’ and anti-British. The arguments are crystallising into a battle within the right wing of politics between different sections of the Tory Party as to who can be the most damning to “Labours Human Rights Act”. It is now down to a dirty short-term battle for votes in the forthcoming Referendum, which is in essence a battle for power. When the smoke clears on the conflict the loss to the UK, if we withdraw from the Act or the Convention will be both devastating and irreversible, both in protections offered to the citizen and the standing of the UK internationally.
Lord Neuberger went on to make clear that although, at times, he strongly disagreed with some Strasbourg judgments, there were very few of its decisions which he considered “misconceived”, re-emphasising that the occasional, high profile cases such as prisoners voting rights, regardless of whether the Strasbourg judgment is misreported, hardly represents the preponderance of fair, sensible and logical decisions.
Neuberger’s address in Melbourne is in many ways a mature ‘myth-buster’ in relation to the alarmist hype over Human Rights, and although he recognises the Sumptionite concerns about Strasbourgs, ‘democratic deficit’ he puts this into historical perspective, observing that “the development of pan European law after centuries, indeed millennia, of separate development and frequent wars, and with different political and legal traditions and different historical experiences and different traditions, was never going to be easy.”
He is clearly alluding to the world of November 1950 when the Council of Europe signed the Convention and the desire to avoid a future tragedy of World War.
Lord Neuberger could not have been clearer, “…the spectre of totalitarianism and invasion[was] fresh in their memories [they] were sharply aware of the need for strong, clear and codified set of human rights”.
The world has moved on in many ways, but in others, at the beginning of the 21st century we face many of the threats which were confronting those back in the 1940’s and 1950’s.
The increasing belligerence of Russia, typified in the Ukraine crisis is one example which some have used to draw parallels with the expansive politics of Nazi Germany in the last few years leading to the outbreak of the Second World War.
For many, now is not the time to be withdrawing from a Treaty with Europe, which signs the UK up to a Convention to protect Human Rights, either for the rights of the citizen, or for the message that would send out to the more bellicose Nations within European influence.
Of course, the member States of the Council have considerably expanded since 1950 and it is that proliferation of interests, society, culture and politics to which those such as Sumption point when suggesting that the position of Britain is not the same as those such as Turkey or Romania.
The point has merit, the very proliferation of those subject to the Convention and by being so, aligning them to a united position on the implementation of citizen’s human rights has, at times, diluted the relevance of the interpreted Strasbourg case law to Britain. Put another way, the aim of the Council to achieve a united Europe, committed to basic human rights norms in the aftermath of atrocities of war, has caused it to become a victim of its own success.
But, as Neuberger implies, this is no reason to revoke the Human Rights Act and certainly no logical reason to remove ourselves from the protections afforded by the ECHR.
Neuberger also ‘blows’ the myth about the UK Supreme Court having to follow every decision from Strasbourg. He states and it bares direct quotation “…there is the statutory duty in the Human Rights Act on UK judges, which is not to follow Strasbourg decisions, but to take them into account”.
He goes on, “…the Supreme Court said that it was not bound to follow every decision of [the Strasbourg court]. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the [Strasbourg Court] which is of value to the development of Convention law.”
Neuberger then makes probably one of the most pertinent comments in this whole debate and illuminates the real issue, that of judicial confidence in the UK.
It is the lack of a strong challenge by the UK Senior judiciary to Strasbourg decisions which gives the perception of subservience to Europe, even the misconceived view of loss of Parliamentary Sovereignty, rather than the dominance of the Human Rights Act, the ECHR or even the Strasbourg Judiciary. Lord Neuberger expresses the hope that “As we get more confidence with the passages of time, it is conceivable that we will take a more robust view”. He explains to UK Judiciary deferment to Strasbourg as rooted in the British Commons law heritage of precedent. “I think we may sometimes have been too ready to treat Strasbourg court decision as if they were binding determinations by a UK court whose decision were binding on us”.
He explains the UK judicial deferment to Strasbourg as rooted in the British common law heritage of following precedent.
In fact only a few rights are absolute under the Human Rights Act, the prohibition of torture, slavery and the right to a fair trial. The majority of rights are limited by a number of qualifications. In short, the State can lawfully interfere with a citizens human rights if it is in the interests of National Security, public safety or economic well-being of the country, for the prevention of disorder or crime, protection of health or morals or the protection of rights and freedom of others [used in the Occupy London case to trump their Article 10 Freedom of expression rights].
So it can hardly be cogently argued that the strictures of the Act or the Convention are wholesale inflicted upon the UK by caricatured European Judges, however graphic the image.
Only a few rights are absolute under the Human Rights Act, the prohibition of torture, slavery and the right to a fair trial. The majority of rights are limited by a number of qualifications. In short, the State can lawfully interfere with a citizens human rights if it is in the interests of National Security, public safety or economic well-being of the country, for the prevention of disorder or crime, protection of health or morals or the protection of rights and freedom of others [used in the Occupy London case to trump their Article 10 Freedom of expression rights].
So it can hardly be cogently argued that the strictures of the Act or the Convention are inflicted wholesale upon the UK by caricatured European Judges, however graphic the image.
So, if Neuberger is right, and as a matter of law, as one would expect from one of the most senior Law Lords in the country, he is spot on and the UK courts assert the power to come to their own decisions, if Parliamentary Sovereignty is unassailed as previously argued and if in any event, through margins of appreciation afforded to each country signed up to the ECHR and the fact that most ECHR rights are qualified and not absolute what would a British Bill of Rights bring to the table?
One thing is clear, whether we are in, out or shaking it all about in relation to the Human Rights Act or the ECHR, that will not prevent any UK citizen from engaging their rights under other European Treaties such as the International Covenant on Civil and Political Rights which prohibits countries from deporting people to places of torture, so those who wanted Abu Qatada deported to Jordan to face evidence obtained by torture will still be frustrated, Convention or no Convention.
The Government Panel who reported on the proposal for a British Bill of Rights backed the idea. Sir Leigh Lewis, Chair of the Panel and a retired Civil Servant with extensive experience in the Department for Work and Pensions stated that a Bill of Rights would help people feel as if human rights are “owned by this country, by the people of this country, by the Parliament of this country”.
Putting to one side for a moment that Britain was the central architect of modern human rights protocols in the 1950 Convention, with Winston Churchill at the front and that Parliament remains sovereign, what else can we extract from Sir Leigh’s sound bite?
Of course, it chimes closely with the public statements of the Prime Minister who constantly opines that European bureaucrats have too much power over human rights in Britain and fits neatly into the anti-European rhetoric, which no doubt we will hear more of as the European Referendum approaches probably in June. So much is clear. What is still somewhat opaque is exactly what sort of Bill of Rights is proposed by the Conservatives. Simply saying we want a British Bill of Rights is like saying we want an ice cream. The important and as yet unanswered question is, what flavour?
The previous Labour Government considered a Bill of Rights which introduced specific “duties” or “responsibilities” to sit alongside rights which were already guaranteed, such as the duty to obey the law and pay taxes. Some might add in the same vein, why not include motherhood and apple pie?
Cameron seems to be arguing for a wider margin of appreciation in relation to the rights of UK citizens. But beware, in practice this means less human rights for UK citizens than some others in Europe as we are not deemed by Government to need them because our administrations are so well developed, democratic and mature. Discuss.
Gordon Brown, so effective during the Scottish Independence debate has suggested that there be a “Citizens Convention” to decide proposals before they are put to the UK in referendum.
That debate will be very interesting, as Scotland has already expressed hostility to being bound by a Bill of Rights. Additionally, it is entirely unknown how the Tories seek to bring Northern Ireland into the fold which has already been working upon its own distinct framework for human rights.
The academic, Philip Alson analysed the common characteristics of a Bill of Rights. One of his objectives was to ascertain if it added anything to the Human Rights Act panoply.
He determined three characteristics of a Bill.
– It provides for the protection of particularly important human rights. So does the Act.
– It is binding upon government and can only be overridden with significant difficulty. The Act is more flexible and maintains Parliamentary Sovereignty.
– It provides some form of redress in the event of violation. So does the Act.
Amidst the lack of clarity as to what a British Bill of Rights will look like, we should assume that it will be broadly an interpretive document of existing UK legislation. The Government has stated that the Bill could refer to proportionality of decision making and the need for a balance of rights and responsibilities. The concern is that this is ‘political speak’ for modifying presently held human rights.
In any event, there is nothing new here either, the Act already contains interpretive provisions and case law already requires the test of proportionality. To top it off, the Act specifically mentions the importance of responsibilities as well as rights.
The end game in all this is that the proposed Bill of Rights adds nothing and takes away a lot.
No one is suggesting that Strasbourg always produces judgments that we agree with, but if Baroness Hale is correct, most of the time it gets it right and after all, no one suggest that if the UK Courts occasionally come up with a ‘howler’ it should be abolished.
We should remind ourselves what it was like for citizens who wished to take their cases to Europe before the Human Rights Act. Before 2000, the rights referred to in the Act could only ultimately be enforced in Strasbourg. It was slow, expensive and a torturous process for citizens to exercise their rights. The Act enabled speedy and effective remedies for breaches of Convention rights. The Act made the ECHR enforceable by citizens, under its provisions these rights can be enforced by the citizens in UK courts. Rights against public bodies, rights against the government, rights which have forced governments to provide young men and women in the Armed Forces in conflict to be provided with the best protective equipment, the right of thought, religion and belief, the right to challenge authorities and bodies who discriminate on racial, religious and other grounds, the right for a child to be provided with appropriate education and the elderly to be cared for.
If the Government succeeds in distancing us from the Act and especially the ECHR, the opportunity for the citizen to enforce their rights outside the UK in the ultimate independent court will be lost. The Government will decide which human rights they wish to retain, which human rights the citizen can enforce and where the citizen can go to enforce them.
We should be asking ourselves, ‘and for what’?
In the white heat of the Euro Referendum campaign, the Human Rights Act and the ECHR, already battered by inaccurate and rabid attacks by some politicians, commentators and the popular media, weakened by ill thought out and at times deliberate misrepresentation could be an easy target for politicians seeking to keep us in Europe.
Now is the time for a close analysis and mature discussion on what it means to have the Act and the Convention. Such an analysis will surely reveal its importance to this country and establish that the singular most ‘Pro British’ decision we can make is to retain the Act and remain within the protection of the Convention.
If that means staying in Europe, then so be it.