I wrote a few days ago about the treatment of human-rights policy in the Conservative Party’s 2015 election manifesto. In that post I noted that there was no mention of the radical plans set out in a paper published by the Party in late 2014. It envisaged radical changes in the relationship between the UK and the Council of Europe, 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.
The fact that the manifesto does not mention any of these possibilities — instead limiting itself to a vague proposal to replace the Human Rights Act 1998 with a “British Bill of Rights” — might, I suggested in my earlier post, be taken to imply that the Conservatives have stepped back from the precipice towards which their 2014 paper appeared to lead. However, it must be acknowledged that the manifesto does not rule out these more-radical possibilities.
Against that background, certain remarks made by Lord Faulks — a Conservative Minister of State in the Ministry of Justice — at the 2015 JUSTICE Debate are striking. Faulks singled out section 2 of the Human Rights Act and Article 46 of the Convention as matters that give rise to particular concern from the Conservatives’ perspective. In combination, those provisions have been taken to lock British courts into a tight embrace by their Strasbourg counterpart, section 2 having been interpreted to generally require domestic courts to follow ECtHR jurisprudence, and Article 46 unambiguously making Strasbourg judgments concerning the UK binding upon it in international law. It is unsurprising, therefore, that Faulks trained his fire on these two provisions, given his concern (as will be seen) to reassert national sovereignty.
Faulks welcomed the fact that UK courts have to some extent moved away from the “mirror principle” (that favoured the approach to section 2 mentioned above) and that they appear to have begun to conceive of their relationship with Strasbourg in more flexible, dialogic terms. He also welcomed the UK Supreme Court’s renewed focus upon common-law constitutional, as distinct from Convention, rights.
However, Faulks went on to reiterate concerns about Article 46 which, as noted above, causes the UK to be bound in international law by judgments of the ECtHR in cases to which it is a party. Faulks went as far as to suggest that the upshot of Article 46 is that the Human Rights Act has not (as was promised) “brought rights home”, but that the UK has in effect “subcontracted” human-rights adjudication to the ECtHR, given the ultimate subservience of domestic courts to the Strasbourg Court effected by Article 46. This echoes the rhetoric of Chris Grayling, the Justice Secretary, who has argued that the UK Supreme Court should be “made supreme”. Faulks went on to say:
If … the Tories govern with a majority they will bring in legislation making the rulings of Strasbourg advisory. Now such legislation would cause a stir in Strasbourg … It may or may not cause a change in our relationship with [the Council of Europe]. If it does, so much the better: we will retain our connection with the ECHR, and our sovereignty. But if not, we will give six months’ notice and leave or denounce the terms of the Convention.
If Faulks is to be understood as speaking for the Conservative Party — and it would be odd if a Conservative Minister in an election debate were not to be taken to be speaking in such a capacity — it appears that the vague provisions concerning human rights in the manifesto mask more-radical proposals that largely reflect those set out in the Party’s 2014 paper. And given the profound difficulties that legislation along the lines envisaged by Faulks would pose for the UK’s remaining a party to the Convention, this in turn suggests that ECHR-withdrawal remains firmly in contemplation. That said, it remains unlikely, for reasons of realpolitik, that the Conservatives will be in a position to introduce such far-reaching reforms: even if they were to be unimpeded by a coalition partner, as they were by the Liberal Democrats during the 2010-15 Parliament, devolution, as I explained in my previous post on this topic, would likely prove a major stumbling block.
My analysis of the proposals published by the Conservative Party in 2014 — and arguably revived by Lord Faulks’s recent comments — can be found here. Faulks’s contribution to the JUSTICE Debate on human-rights reform can be viewed below.