Human Rights and the Conservatives’ Manifesto: Four Comments

The Conservative Party published its manifesto earlier today. It contains two principal statements about human rights law. Page 60 includes the following passage:

We have stopped prisoners from having the vote, and have deported suspected terrorists such as Abu Qatada, despite all the problems created by Labour’s human rights laws. The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.

Meanwhile, the following is to be found on page 73:

We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights. It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society. But it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.

Against this background, four points are worth making. 

“Labour’s Human Rights Act”

First, the references to “Labour’s human rights laws” and “Labour’s Human Rights Act” are striking. It is, of course, inevitable that matters addressed in a political party’s manifesto will be treated in a party-political manner. However, the fact that human-rights legislation is a political football that falls to be treated in such a way tells us something significant about the Human Rights Act 1998. It demonstrates that the legislation introduced by the first Blair Government has failed to acquire a degree of political fundamentality that elevates it beyond the cut-and-thrust of everyday politics. This is no doubt due both to the way in which the HRA was introduced — little effort having been made to engage the general public in what was perceived to a political and legal elite’s pet project — and its (in some quarters) toxic European credentials as a vehicle for the domestication of Convention rights. In a system premised on the sovereignty of Parliament, no legislation can be regarded as entirely legally sacrosanct. The most that can be hoped for in respect of Acts dealing with basic constitutional matters is that they reflect a degree of political consensus which invests them with a form of resilience that makes them genuinely “constitutional” in the small-c, non-legal sense applicable under the UK’s unwritten constitutional arrangements. The HRA has clearly failed to secure such a status.

Universalism

Second, in a separate section dealing with the UK’s place “on the world stage”, the manifesto says — apparently without conscious irony — that a future Conservative Government would “continue to support universal human rights”. That statement stands in obvious tension with those parts of the manifesto that deal with the HRA and the ECHR. The latter appear to reject the notion of “universal” human rights; instead, they are premised on the idea that human-rights laws in the UK should be informed by a British conception of human rights. Presumably that conception, or at least the Conservative Party’s conception of that conception, of rights is significantly different from the view of human rights taken by the European Court in Strasbourg — otherwise there would be little point in replacing European with British human-rights laws. This point is reinforced by the undertaking to make the UK Supreme Court — rather than the Strasbourg Court — the “ultimate arbiter” of human rights matters in the UK. The assumption appears to be that a peculiarly British set of human rights should be curated by British court.

Full circle?

Third, the Conservative Party has been on something of a journey in relation to human rights over the last five years. Ultimately, however, that journey has taken it full circle. It went into the 2010 election with an undertaking essentially identical to that which is found in its 2015 manifesto — i.e. to repeal the HRA and to replace it with a British Bill of Rights. Although it has never been entirely clear what that would amount to, the direction of thinking within the Conservative Party can be inferred from certain key events over the last four years or so.

The first of those events was the establishment of the Commission on a UK Bill of Rights. The Commission’s terms of reference took it as as given that the UK would both remain a party to the ECHR and that any successor to the HRA would protect Convention rights at least to the extent that the HRA presently does. Those terms of reference were clearly a product of the politics of coalition, more-radical options being unacceptable to the Liberal Democrats. As a result, the Commission’s hands were largely tied. The upshot was a final report that had little of substance to say, but which laid bare the factionalisation of the Commission through the incorporation of several appendices authored by individual members, advocating everything from the status quo through HRA-repeal to ECHR-withdrawal.

The appointment of Chris Grayling as Lord Chancellor and Secretary of State for Justice coincided with a notable hardening of thinking not only in relation to human rights, but also in relation to judicial review and legal aid. The high-water mark — or, depending on one’s view, nadir — of this phase of policy development is formed by the paper published by the Conservative Party in 2014 on Protecting Human Rights in the UK. It proposed radical changes in the relationship between the UK and the ECHR, suggesting that UK courts should be told to depart from ECtHR case law in certain areas, that UK courts should no longer be required to take account of that case law, and that the UK should treat Strasbourg judgments as “advisory” rather than (as they actually are) legally binding. The paper went on explicitly to acknowledge that these proposals may be incompatible with the UK’s international obligations under the ECHR and that it might be necessary for the UK to cease to be a party to the Convention.

Against that background, today’s manifesto appears to represent a significant climb-down, any mention of the possibility of ECHR-withdrawal being notable by its absence. Absent too is any suggestion that the proposed British Bill of Rights would seek radically to recalibrate the relationship between domestic law and courts, on the one hand, and the ECHR and the Strasbourg Court, on the other. A likely reason for this is the fact that devolution represents a major complicating factor. The Commission on a UK Bill of Rights noted that support for the HRA-ECHR regime was substantially greater in the devolved nations. Indeed, the ECHR is, in effect, fundamental law within the three devolved nations, breach of Convention rights being a ground for judicial strike-down of primary legislation. It follows that the more-embedded nature of the ECHR — in both political and legal terms — in the devolved nations represents a real brake on the capacity of any future UK Government to bring about British withdrawal from the Convention.

Options

Fourth, the options open to a future Conservative Government would thus be limited. Indeed, its freedom of action would be caught in a pincer movement by virtue of forces operating and the sub- and supra-national levels. At the sub-national level, its freedom would, as already noted, be curtailed by the politics of devolution. This would act as a political constraint upon the UK’s capacity to free itself of its legal obligations under the ECHR. As a result, at the supra-national level, those legal constraints flowing from ECHR membership would endure, and would significantly constrain what a new domestic bill of rights could achieve. In particular, the Convention rights — and the Strasbourg Court’s judgments in respect of them — would remain binding upon the UK in international law.

This is not, of course, to say that the UK could not have its own bill of rights. It is not even to say that the UK could not have a bill of rights that differed in certain respects from the text of the ECHR. After all, many other European countries exhibit precisely such arrangements, domestic bills of rights, rather than the Convention, forming the principal site of constitutional adjudication. Of course, in such countries, the Convention remains binding as a matter of international law, but the route to Convention-compliance may be more domestically focussed and nuanced.

By the same token, a looser and more creative relationship between UK courts and their Strasbourg counterpart can certainly be envisaged. Indeed, such a process is arguably in the process of developing. The potential for variable geometry within the Convention system has long been acknowledge through the margin-of-appreciation doctrine — a conception, along with the cognate notion of subsidiarity, that is acquiring a higher profile through the adoption of Protocol 15. Meanwhile, at the domestic level, there is renewed focus on common-law constitutional rights and a greater willingness to engage in dialogue with — rather than to slavishly adhering to every ruling of — the Strasbourg Court. In this way, a constitutional space within which domestic human-rights adjudication begins to transcend the mechanical judicial application of Strasbourg jurisprudence is both opening up and being exploited.

But there are limits. And, for as long as the UK remains a party to the ECHR, those limits are ultimately set by the ECHR. If, therefore, the European Court holds that the Convention makes it unlawful to ban all prisoners from voting or to deport foreign nationals into circumstances in which they face a real risk of torture or ill-treatment, then that is that. If the UK flouts such rulings, it breaches international law. It follows, then, that while a domestic bill of rights may seek to emphasise and utilise such flexibility as exists within the ECHR regime, that regime — for as long as the UK remains a party to it — remains the legal bottom line.

Further posts

I have written elsewhere about various aspects of the matters covered in this post. See, in particular:

• Book chapter: Law, Rights and Constitutional Politics
• Public Law article: After Brighton — Between a Rock and a Hard Place
• European Human Rights Law Review article: A Damp Squib in the Long Grass — The Report of the Commission on a Bill of Rights
• Public Law for Everyone post: Analysis of the human-rights proposals published by the Conservative Party in 2014