My analysis of the Conservative Party’s proposals for a British Bill of Rights

I wrote earlier this week about David Cameron’s announcement at the Conservative Party conference that a future Tory government would repeal the Human Rights Act 1998 and replace it with a British Bill of Rights. Cameron gave very little away in his speech, but more detailed proposals — although not yet a draft Bill — have now been published.

If implemented, the proposed changes — contained in a Conservative Party (not a Government) paper entitled Protecting Human Rights in the UK — would yield very significant changes. No mere rebranding exercise, the Conservatives’ Bill of Rights would significantly limit domestic courts’ powers relative to those they have under the Human Rights Act, and reshape — as a matter of domestic law — the influence of the European Convention on Human Rights.

Five key elements of the proposals

The Human Rights Act would be repealed and replaced with a Bill of Rights. And it would contain all of the rights presently given effect to by the Human Rights Act. So far, so similar. However, in five key ways, the Bill of Rights would differ sharply from the Human Rights Act.

Glossing the Convention

To say that the Convention rights would be replicated in the Bill of Rights is misleading, since the legislation would significantly gloss them. UK courts would, it seems, be directed to interpret Convention rights in particular ways, including in ways substantially at odds with the case law of the European Court of Human Rights. For example, the Conservatives’ paper says that:

Some terms used in the Convention rights would benefit from a more precise definition, such as ‘degrading treatment or punishment’, which has arguably been given an excessively broad meaning by the ECtHR in some rulings.

In other words, UK courts would be directed by the Bill of Rights to interpret certain Convention rights — or at least certain aspects of certain Convention rights – differently, i.e. more narrowly, than the Strasbourg Court interprets them. It follows that the Bill of Rights would not give effect to the Convention rights as curated by the ECtHR and understood across the Council of Europe; rather, it would give effect, in some instances, to bastardised versions of those rights.

The Convention would be glossed — we might even say contradicted — in a second way. The extent to which individuals would be permitted legally to enforce their rights in domestic courts would be made contingent upon the extent to which they had discharged their “civic responsibilities” (a term which is alien to the Convention and undefined in the proposal):

So for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 to prevent the state deporting them after they have served their sentence.

This represents an extension of the policy already contained in the Immigration Act 2014 — about which I have posted before — which seeks to control the way in which courts assess the proportionality of restrictions upon the right to private and family life in certain circumstances by ascribing a fixed weight to a given factor (such as the fact that the person concerned has committed a particular type of criminal offence).

However, on this point, the Conservatives’ paper misunderstands — or at least misrepresents — the Convention. The proposal invokes a notion of responsibilities that — in both conception and effect —finds no analogue in the Convention. The proposal says:

The Convention recognises that people have civic responsibilities, and allows some of its rights to be restricted to uphold the rights and interests of other people. Our new Bill will clarify these limitations on individual rights in certain circumstances.

Here, the framers of the proposal conflate two quite different things. Under the Convention, the extent to which one person may invoke her rights can — and should — be restricted by reference, in certain circumstances, to others’ rights and interests. That much is consistent with the notion of balance — one that is, for most purposes, hard-wired into the Convention — between (on the one hand) the rights of the individual and (on the other hand) the interests of the public and/or of other individuals. However, this Convention notion of balance is distinct from the sort of cause-and-effect relationship, postulated in the Conservatives’ proposals, whereby a particular form of conduct (a breach of “responsibilities”) by an individual ought necessarily to limit her capacity to enforce the right in question.

The distinction can be illustrated by a simple example. Assume that an individual has committed an offence, is imprisoned, is released, and then resists deportation on the ground that it would breach her right to respect for private and family life. If she continues to present a sufficiently serious threat to others, then this would provide strong grounds for deportation in spite of the impact that that would have upon private and family life. This merely reflects the fact that, as a qualified right, the right to respect for private and family life can be limited in ways that are proportionate to other relevant interests, including “public safety” and the “rights and freedoms” of others. However, it is the present and relevant threat to others’ interests, not the fact that a “responsibility” was breached at some point in the — perhaps distant — past, that would justify deportation in such circumstances. Whether past criminal conduct should provide grounds for trumping a right such as respect to private and family life is debatable; but the claim that the Convention permits this is patently false.

Strasbourg jurisprudence and UK courts

Second, it appears that the Bill of Rights would contain no provision equivalent to section 2(1) of the Human Rights Act, which requires UK courts to “take into account” Strasbourg jurisprudence. In contrast, the Bill of Rights would “[b]reak the formal link between British courts and the European Court of Human Rights” because “Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg. The UK Courts, not Strasbourg, will have the final say in interpreting Convention Rights, as clarified by Parliament.” The implication is that there is presently a “link” that requires UK courts to apply ECtHR interpretations of the Convention. This is not, however, so. Although UK courts did, for a time, come close to reading such an obligation into the Human Rights Act, it is clear that they now conceive of their relationship with Strasbourg in more flexible terms.

The proposal therefore relives UK courts of an obligation that they do not — and do not believes themselves to — have. Equally, however, the proposal does not mean that UK courts would be barred from taking account of ECtHR jurisprudence: they would presumably be able to do so if they wished to. However, this point is undercut for the first aspect of the proposals, considered in the previous section of this post. Under that aspect of the proposals, UK courts’ capacity to align domestic and Strasbourg jurisprudence would be attenuated by the domestic legal obligation in the Bill of Rights to adopt interpretations of Convention rights at odds with the Strasbourg norm. As a result, UK courts would be obligated to make decisions that would place the UK in breach of its treaty obligations. The sovereignty of the UK Parliament entitles it to direct domestic courts to act in such a way — but that doctrine of domestic constitutional law cuts no ice whatever when the matter is analysed on the plane of international law.

Strasbourg judgments and UK law

Third, the Bill of Rights would “[e]nd the ability of the European Court of Human Rights to force the UK to change the law”:

Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement. It will only be binding in UK law if Parliament agrees that it should be enacted as such.

This statement conflates two distinct matters. It not presently the case that ECtHR judgments oblige the UK Parliament to do anything. It is, however, the case that a judgment holding UK law to be incompatible with the Convention triggers the international responsibility of the UK as a state. This follows straightforwardly from Article 46(1) of the Convention, which legally requires all states parties to the Convention to “abide by the final judgment of the [European] Court [of Human Rights] in any case to which they are parties”. It is, however, the case that the UK Parliament — as an organ of the UK state — is capable of engaging the UK’s international responsibility if parliamentary action (e.g. legislation contrary to the Convention) or inaction (e.g. failing to amend UK law so as to bring it into line with the Convention) results in a breach by the UK state of its treaty obligations.

The upshot, then, is that — for the UK as a state — the ECtHR’s judgments are not merely advisory, and cannot be rendered so by domestic legislation (a point I have made elsewhere). To suggest — as the Conservatives’ paper clearly does — that domestic legislation could change the international-law status of ECtHR judgments is straightforwardly wrong. Parliament can “treat” Strasbourg judgments as advisory if it wishes, but it will not make them so. This raises yet-deeper issues concerning the UK’s commitment to the rule of law. That commitment must encompass the rule of international law — a commitment which these proposals, in effect, renounce.

UK courts’ interpretative powers

Fourth, the Bill of Rights would prevent UK law from “being effectively re-written through ‘interpretation’”:

In future, the UK courts will interpret legislation based upon its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case-law.

The Bill of Rights would thus not — as section 3(1) of the Human Rights Act presently does — oblige UK courts to interpret domestic legislation consistently with Convention rights whenever possible. Presumably, therefore, courts would more frequently find themselves unable to interpret UK law consistently with the Convention and would have to apply UK law in spite of that incompatibility. As a result, operative domestic law would more often be interpreted and applied in a way that would breach Convention rights. There is nothing in the Conservatives’ paper which suggests that the judicial power to issue declarations of incompatibility would be removed (although neither is there anything which confirms it would remain). If that power were to be left undisturbed, then the diminished interpretative power would likely result in more declarations of incompatibility. As a result, human-rights matters would less often be resolved by courts under the colour of interpretation, and would more often fall for political resolution: unless there were a subsequent binding Strasbourg judgment, it would be for Parliament to decide whether and, if so, how to respond to a declaration of incompatibility. This would shift the burden of inertia from that which obtains when the courts’ present interpretative powers are used: the invocation of those powers places the onus on Parliament, should it so wish, to reverse a judicial ruling; a declaration of incompatibility, in contrast, can merely by ignored if Parliament wishes to retain incompatible legislation on the statute book.

This analysis, however, must be qualified by reference to an aspect of the proposals considered above. UK courts would no longer be working with an unvarnished version of the Convention, but with a version of the Convention glossed by the terms of the Bill of Rights itself. As a result, it would likely be rarer for incompatibilities between domestic law and operative rights to arise in the first place, because the relevant comparator would not be the Convention but a diluted version of it. The combination of these two features of the proposed Bill of Rights — that is, the removal of the judicial obligation to interpret compatibly and the effective substitution of Convention rights with mutations thereof — would be of considerable practical significance.

“Serious” and “trivial” human rights cases

In some ways, the fifth proposal is the most astonishing. Under it, the use of human-rights laws would be limited to “the most serious cases”. The obvious question which this invites is: what would constitute a sufficiently serious case? The answer given in the Conservatives’ paper is as follows:

The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.

This proposal is questionable on a variety of levels. It is, for instance, unclear why cases involving “criminal law”, “liberty” and “property” should be singled out as particularly important. What of free speech, the right not to be tortured, and rights of due process? Nor is it clear what would constitute “similar[ly] serious matters”. It is not even clear by reference to what criteria seriousness and its observe, triviality, would be determined.

There is, however, a larger point here. To focus on the technical difficulty involved in differentiating between serious and trivial human-rights cases would be to confer false dignity upon that distinction. There are meritorious (i.e. well-founded) and unmeritorious (i.e. not well-founded) human-rights claims; but to suggest that there are serious and trivial human-rights claims is to diminish — indeed, misunderstand — the notion of human rights at a fundamental level. This is not to suggest that there may not be a hierarchy of rights (as is reflected, for instance, by the distinction between absolute and qualified rights), but the very fact that a right is considered to be a human right ought to immunise it against any suggestion that it is insufficiently important to warrant judicial protection if unlawfully infringed.

If the Conservative Party wishes to argue in favour of judicial protection of a much narrower range of rights than those that are presently recognised by the ECHR, then it is perfectly entitled to make such an argument — but it is disingenuous to claim that the Bill of Rights would include all of the Convention rights, only to deny judicial protection in respect of those judged to be “trivial”.

Three further comments

Aside from the problems referred to above, three further points should be mentioned.

Devolution

First, the Conservatives’ paper barely acknowledges the profound devolution-related difficulties that their proposals would encounter (about which Aileen McHarg posted yesterday on the UK Human Rights Blog). It merely says that:

We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK.

However, in a piece that repays reading in full, Colm O’Cinneide explains that:

The existence of this ‘devolution dimension’ imposes some constraints on the freedom of the Westminster Parliament to reconstruct UK human rights law as it sees fit. For example, any change to the current requirement that the Northern Irish, Scottish and Welsh legislatures must comply with Convention rights would affect the scope of their devolved powers: as a result, under existing constitutional arrangements, it would appear to trigger the Sewel Convention, meaning that Westminster would ‘normally’ have to seek the consent of the devolved legislatures before it could legislate in respect of human rights law as it applies in respect of devolved matters. Furthermore, because the devolved legislatures are able to take steps to extend human rights protection, they have the power to minimise the impact of any reduction of rights protection brought about by Westminster legislation within the sphere of devolved functions.

International obligations

However, devolution is merely one aspect of the legal complexity that the modern, multi-layered British constitution brings to bear upon this issue. The proposals have implications not only at the devolved level, but also — and profoundly — on the international plane. In particular, it is far from clear that the direction of travel implied by the proposals would be compatible with the UK’s ongoing membership of the Council of Europe. Indeed, the possibility of exit is explicitly countenanced in the proposal document:

During the passage of the British Bill of Rights and Responsibilities, we will engage with the Council of Europe, and seek recognition that our approach is a legitimate way of applying the Convention. In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point at which our Bill comes into effect. We would do so safe in the knowledge that the text of the Convention itself is enshrined in our own statutes, protecting human rights in line with the will of the British Parliament and the rulings of British Courts.

Politically, the Council of Europe would presumably wish to avert a UK exit, but the scope for accommodation seems slight. Of course, the UK was a party to the ECHR for several decades before the Human Rights Act was enacted, and the mere fact that the Bill of Rights would give UK courts lesser powers than the HRA to uphold Convention rights is not in itself necessarily problematic (subject to the need to provide domestic remedies that fulfil the Article 13 effectiveness criterion).

However, the Conservatives’ proposals is that they do not simply seek to restore the pre-HRA position. They go further by explicitly laying the ground for the UK to refuse to comply with ECtHR judgments. The significance of this should not be overstated — it is, after all, a decade since the original prisoner-voting judgment which, Human Rights Act notwithstanding, the UK has still not implemented. Significantly, however, the Conservatives’ proposals appear to countenance the normalisation of non-compliance. It is difficult to see how, in such circumstances, the UK could remain a party to the Convention. One way, then, of comprehending the apparent legal illiteracy of the proposals is to view them as a strategic element of a larger process, the endgame being British disengagement from the Council of Europe. Indeed, precisely such a strategy was advocated by some of the Conservative members of the Commission on a Bill of Rights.

Deeper constitutional waters

Third, and finally, it is worth asking how a Bill of Rights along the lines proposed might be impacted by and relate to the increasingly vigorous doctrine of common law constitutional rights. Consider, for instance, Osborn v Parole Board [2013] UKSC 61, in which the Supreme Court was asked to decide whether three prisoners had been unlawfully treated by the Parole Board when decisions to keep them in or recall them to prison were taken without according them oral hearings. Lord Reed, giving the sole judgment, said that the appellant prisoners’ advocates had erred by basing their submissions primarily upon Article 5(4) ECHR whilst largely neglecting domestic administrative law. The focus, he said, should have been upon the latter — and the rights that are recognized at common law. This was so because the HRA

does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.

A similar point was made by Lord Toulson (with whom Lords Neuberger and Clarke agreed, and with which Lord Sumption also expressed agreement in a short concurring judgment) in Kennedy v The Charity Commission [2014] UKSC 20:

What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.

As I argued in my post on Osborn, Lord Reed’s analysis suggests that repeal of the HRA — and even withdrawal from the ECHR — may be less effective than proponents of such reforms anticipate. This follows because the common law — including rights derived from the ECHR but now absorbed into the common law — would remain even in the event of HRA repeal/ECHR withdrawal. An assumption implicit in the Conservative Party’s paper is that there is, in effect, a blank canvas upon which a future Parliament could legislate. But that represents a blinkered and inaccurate view of the British constitution.

It does not therefore follow that legislation directing courts to water down Convention rights by interpreting them in a limited fashion would necessarily have the decisive impact upon the courts’ approach which the framers of these proposals anticipate. Instead, the possibility arises that courts would fall back upon common-law constitutional rights — which, significantly, might turn out to be more generous than the emaciated version of the Convention that would fall to be applied under the Bill of Rights.

Of course, Parliament could respond to — or anticipate — such a judicial approach by legislatively directing judges to interpret common-law rights, like Convention rights, in particular ways, or even directing judges to ignore common-law rights altogether and apply only the diluted set of rights provided for in the Bill of Rights. That, however, as Sir Humphrey Appleby would have put it, would be a “courageous” policy. Statutorily rolling back a statutory jurisdiction to uphold Convention rights is one thing. Attempting statutorily to limit the courts’ powers to enforce common-law rights the depth of whose constitutional fundamentality has not yet been settled would be another.

The Human Rights Act has very effectively put questions about common-law rights — and whether they might, at least in extremis, enjoy priority over primary legislation — on the back-burner. However, the repeal of the Act coupled with aggressive legislative intervention that sought to curtail judicial enforcement of common-law as well as Convention rights would risk a constitutional crisis whose outcome cannot be predicted with any confidence. The Conservative Party’s proposals, if implemented, may therefore take us into far deeper constitutional waters than the framers of those proposals have anticipated; in this sense, as in several others, they are clearly — embarrassingly — out of their depth.

The intention of this post is not to argue that any change to the present arrangements in the UK for judicially enforcing human rights would be illegitimate. The way in and extent to which courts should be authorised to protect individual rights is a subject of legitimate political debate. So too is the relationship that the UK ought to have with international institutions such as the European Court of Human Rights. However, the cause of meaningful debate is not advanced by the present proposals. They fail adequately to engage with fundamental aspects of our present constitutional architecture and are built upon a misleading analysis of the legal context. If the Conservative Party wishes to argue in favour of a radically dejuridified approach to human rights, it should feel entirely free to do so. But if it wishes to make such an argument, it is incumbent upon it to justify it by reference to a compelling and accurate critique of the present system and meaningful and coherent plans for reform. Today’s proposals fail spectacularly on both of those counts.