A hardening of Conservative human rights policy: what are the options?

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I noted earlier this week that the dismissal of Dominic Grieve as Attorney-General was likely to foreshadow a significant hardening of the Conservative Party’s stance in relation to the European Convention on Human Rights. Today, the BBC is reporting—following Grieve’s removal, the departure of arch-Europhile Kenneth Clark and William Hague’s move from the Foreign Office—that:

The Conservatives have drawn up plans designed to limit the power of the European Court of Human Rights and to reassert the sovereignty of Parliament. David Cameron has been presented with the proposals that would mean Parliament decided what constitutes a breach of human rights.

The BBC’s Political Editor, Nick Robinson, elaborates in the following terms:

In recent weeks the prime minister was presented with a plan by a group of Conservative lawyers. It proposes a new law which would assert that Parliament and not the European Court of Human Rights was the supreme body. Their report predicts that a so-called British Bill of Rights would either force changes in the way the Strasbourg court works or trigger a crisis which could lead to the UK’s expulsion from the international body which set up the court and which Britain helped to found – the Council of Europe.

The former Attorney General’s reaction to that was stark. I’m told he warned his colleagues that it was a plan for “a legal car crash” albeit one with “a built-in time delay”. He argued that promising to stay in the European Convention of Human Rights whilst refusing to recognise the court’s rulings was “incoherent”.

It seems clear—as Adam Wagner has pointed out—that this week’s Cabinet reshuffle was designed, in part, to facilitate a radical shift in policy in this area: so what are the options that are open to the Conservative Party? This depends very much of exactly how far they are willing to go in terms of distancing, or removing, the UK from the ECHR.

What if the UK remains a party to the ECHR?

If the UK is to remain a party to the ECHR, then the options are actually very limited: Article 46 of the Convention means that the UK is bound in international law “to abide by the final judgment of the Court in any case to which [it is a party]”. Two (limited) options therefore arise.

First, a future Conservative Government could, with a majority in Parliament, secure the repeal of the Human Rights Act 1998, and do nothing further. This would, in a sense, put back the clock to September 2000: i.e. before the HRA 1998 entered into force. The rights protected by the Convention would cease to be enforceable in domestic law in the ways specifically attributable to the HRA, but this would not render them wholly irrelevant in domestic law: after all, before the HRA entered into force, Convention rights could be used (among other things) to resolve ambiguity over the meaning of domestic legislation, guide the exercise of judicial discretion, and influence the evolution of the common law. Convention rights would then have no lesser status in domestic law than that which they had pre-HRA, and might—given that they have to some extent been absorbed into domestic law—retain a greater role.

Second, repeal of the HRA could be accompanied by the enactment of a “British Bill of Rights”, whilst remaining a party to the ECHR. This offers the greatest scope for fudging the issue. It is likely that those agitating for change would seek to frame a bill of rights so as to reduce the domestic courts’ powers in this area, dilute public authorities’ duties to comply with Convention rights, and place greater distance between the jurisprudence of the domestic and Strasbourg courts. Options would include: expressing rights in terms different from those used by the Convention; casting rights more narrowly; omitting certain Convention rights; expressing limitations upon certain rights more broadly than corresponding limitations in the Convention; prescribing how certain rights should and should not be interpreted; making it clearer than the HRA does that domestic courts do not have to follow the jurisprudence of the ECtHR; removing or diluting the courts’ interpretative duty presently contained in section 3 of the HRA; removing the courts’ power, presently found in section 4 of the HRA, to declare the incompatibility of primary legislation that cannot be read consistently with Convention rights. Some of these ideas are reflected in a private member’s bill promoted by Charlie Elphicke MP. Crucially, however, none of this would alter the position in international law, according to which the ECHR—and the judgments of the ECtHR—would remain binding upon the UK. This option is, then, a more finessed version of the first option: one that, if not sending Convention rights back to where they came from, would render the UK’s legal system less ready to accommodate them.

What if the UK withdraws from the ECHR?

Much wider options begin to open up, however, if withdrawal from the ECHR is in contemplation—which, as is increasingly clear, it is. Withdrawal would necessarily be accompanied by repeal of the HRA, since the HRA—which gives effect in domestic law to Convention rights—would be make no sense whatever if the UK were no longer a party to the Convention. The question would then be whether a domestic bill of rights should be adopted.

If HRA-repeal and ECHR-withdrawal were unaccompanied by the enactment of a domestic bill of rights, the intention would presumably be to rid domestic law as comprehensively as possible of human-rights influences. However, the UK would presumably remain a member of the EU, in which context human-rights law—including the Convention—would remain relevant at the domestic level in areas affected by EU law. The common law doctrine of constitutional rights would (unless Parliament sought to disturb it, e.g. in the legislation effecting the repeal of the HRA) also remain—and might turn out to be a more potent force that when it was last centre-stage in the late 1990s.

A more likely scenario, however, is that HRA-repeal and ECHR-withdrawal would be accompanied by the enactment of a domestic bill of rights. What that would look like is anyone’s guess—and, given that the Commission on a Bill of Rights was required to take ECHR membership as a given, its report provides little by way of guidance. However, this approach would offer policymakers the greatest freedom. It would, to some extent, offer a blank page upon which a very different human-rights system could be written (although it should not be forgotten that the ECHR is far from the only international-law constraint under which the UK finds itself in the human rights sphere). There would, for instance, be a largely free hand concerning the choice of rights to be protected, the means by which they would be protected, the balance between rights and other considerations (including “responsibilities”, whatever that means in this context), and the relationship between the courts on the one hand and Parliament and the executive on the other.

Where next?

Today’s media reports suggest that the Conservative Party’s strategy may be to deliver an ultimatum to the Council of Europe, by way of provoking a once-and-for-all showdown. If—as seems to be the intention—Parliament were to assert itself to a greater extent in the face of adverse Strasbourg judgments, then the UK’s position within the Council of Europe would become increasingly untenable. There are indications that—in line with Conservative policy on the European Union—confrontations of this nature may form the backdrop to British attempts to negotiate a treaty amendment in order to diminish the role of the Strasbourg Court. However, this would require unanimity among the 47 members of the Council of Europe and seems, to put it mildly, unlikely.

It is hard, therefore, to escape the conclusion—albeit that it must at this stage be a tentative one—that the ground is being laid for UK withdrawal. What would then happen is impossible to predict with certainty, but it is possible to be more confident on one point: namely, that a British Bill of Rights enacted following the UK’s departure from the ECHR would (absent architectural constitutional change such as the conferral upon courts of a strike-down power and the attendant repudiation of legislative supremacy) likely possess less legal bite than the HRA. This follows because, at present, it is the fact that domestic judgments foreshadow likely binding adjudication in Strasbourg that invests the HRA regime with real legal teeth. Absent that characteristic, a domestic regime would presumably equip courts—at most—to contribute to political pressure upon Parliament to amend legislation found to be wanting in human-rights terms. As such, a domestic bill of rights coupled with withdrawal from the ECHR would be likely to signal a reversal of the trend towards legal constitutionalism, and a swing of the pendulum back towards political constitutionalism. For this reason, there is something of a paradox in Conservative politicians’ rhetoric about “making the UK Supreme Court supreme”: to the contrary, the intention appears to be to reassert the sovereignty of Parliament.

 

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