Calls for withdrawal and kneejerk defences of the status quo each risk oversimplifying the UK’s developing political debate about the European Convention on Human Rights. The implications of each position must at least be properly understood if the debate is to be a meaningful one.
As the UK’s Labour government increasingly pursues an agenda apparently designed to address the electoral threat it perceives from the political right, human rights, particularly in relation to such hot-button issues as immigration control, is inevitably rising up the political agenda. That trend is only likely to continue between now and the next general election. I have written recently about Justice Secretary Shabana Mahmood’s Council of Europe speech setting out the government’s view that both the Human Rights Act 1998 (‘HRA’) and the European Convention on Human Rights (‘ECHR’) itself need to be reformed, immigration control and the deportation of foreign-national criminals being the animating factors. Others, of course, would go much further; it is, for instance, the clear policy of Reform UK that the United Kingdom should withdraw entirely from the ECHR.
Kneejerk defences of the status quo
One potential response to the increasing tendency of politicians to problematise the UK’s existing human rights model, which is based on ECHR membership coupled with the domestic effect that the HRA accords to the Convention, would be to dig in and defend that model unyieldingly. However, in two recent pieces, Conor Casey and George Peretz — writing from notably contrasting philosophical perspectives — convincingly argue that such a response would be inappropriate, both because it would begin from indefensible premises and because, from the perspective of those who wish to make the case for the ECHR-HRA model, it would be strategically misguided.
Casey’s central point, which is clearly correct, is that it is possible to support human rights, including the legal protection of human rights, while being critical of a given model of such protection: ‘human rights and human rights law are not the same thing’. Conflating the two, he rightly says, carries a number of risks, including the impoverishment of the debate about human rights protection in the UK: ‘It means that some defenders of the status quo of the ECHR will struggle to categorise serious and sweeping critiques of the Strasbourg Court’s jurisprudence as anything other than a dangerous attack on the very idea of human rights acting as a fetter on public power.’
Peretz observes that Casey is generally critical of the European Court of Human Rights (‘ECtHR’) and ‘has a sceptical position towards the UK’s continuing membership of the [ECHR]’, while acknowledging that he ‘makes a serious point that should be taken seriously by those of us who want to persuade our fellow citizens that we should remain in … the ECHR’. Peretz goes on to argue that ‘any persuasive argument for remaining in the ECHR has to do one of two things — and probably a mixture of both’. First, he says, there is a need to ‘positively defend the Strasbourg court’s case law as being a broadly acceptable framework of human rights adjudication’. Second, ‘even if you think that the Strasbourg’s case-law is unsatisfactory, that consideration has to be balanced against the enormous disruption that leaving the ECHR would cause to the UK’s crucial security and economic relationships with our neighbours’. For Peretz, then, the importance of not ‘accus[ing] all leavers of being opposed to human rights’ is ultimately strategic, given that such accusations, as well as being factually inaccurate, are liable to be counterproductive.
ECHR withdrawal
If (as I do) we agree with Casey and Peretz that (as Peretz puts it) ‘anyone who believes in human rights, or even in the basic principle of there being a charter of human rights with legal force, may nonetheless not wish to be subject to a particular charter, or to a particular court‘s interpretation of that charter’, we must be open to the possibility of existing arrangements — which, in the UK, means the ECHR-HRA model — being reformed or even replaced. It is that point which forms the focus of a recent piece by Sanjit Nagi. Having noted various reforms or attempted reforms of the ECHR-HRA model, Nagi concludes that ‘[w]hile reform is feasible’ — by which I take him to mean possible in theory — ‘it has not been successful’. This leads him to the conclusion that ‘withdrawal from the Convention is … the only meaningful vehicle for change’.
Neatly demonstrating the central point made by Casey and Peretz, Nagi argues that ‘withdrawal from the ECHR and repeal of the HRA 1998 should be seriously examined’ while expressing support for a renewed set of domestic constitutional arrangements in which ‘rights are negotiated in Parliament by elected officials and a commixture of powers, which includes the judiciary and common law’, which presumably means that he is not opposed to some form of judicial enforcement of human rights. However, just as we should approach kneejerk defences of the status quo with scepticism, for the reasons already canvassed, we should be equally vigilant when it comes to advocacy of withdrawal — not because the existing model is perfect, but because it is essential to recognise what would be lost, as well as what might be gained, by tearing up, rather than seeking to improve, that model.
Part of Nagi’s argument is that the ECHR-HRA model is a ‘philosophically individualistic instrument’ that ‘has ‘deliberately elevated the status of individual rights over and above other interests’, thereby preventing due promotion and protection of ‘a more communitarian or reciprocal model of rights’. Leaving to one side questions about the extent to which this analysis is correct, and, for the sake of argument, assuming that a ‘more communitarian or reciprocal model’ would be normatively desirable, what is the prospect in terms of realpolitik of ECHR withdrawal and HRA repeal being followed by the adoption of such a model? In the current domestic — and global — political climate, the answer must be that there is very little prospect of such a development, but a real risk, at least in some (now conceivable) political circumstances, that the removal of the existing model might not be accompanied by any serious replacement. In other words, once political reality is factored in, it becomes apparent that advocating in favour of the destruction of existing human rights arrangements in order to make way for something ‘better’ risks making the theoretically perfect or better (if that is our view of communitarian versus individualistic models) the enemy of the good (which is how we might see the current situation if we consider an imperfect model to be preferable to no system of human rights protection).
‘Legislative freedom’
The heart of Nagi’s thesis, however, lies in the contention that ‘[t]he value of our flexible, uncodified, constitution is that it provides the conditions for an elected majority in Parliament to have legislative freedom’. He goes on to argue that the ECHR-HRA model ‘confine[s] the legislative and policy-making process so that it disproportionately considers rights-compatibility distorts, limits, and significantly harms domestic deliberations about any proposed measure’, going as far as to appear to suggest that the existing model would have prevented the enactment of key post-1945 social and economic reforms: ‘The welfare state, national health service, and full employment being offered to all classes was only possible because of an unfettered elected majority in Parliament.’ Leaving to one side the obvious contestability of that bold empirical claim, Nagi’s contention concerning ‘legislative freedom’ prompts a number of comments.
As a matter of strict law, nothing in the ECHR-HRA model constrains Parliament’s ‘legislative freedom’. It remains wholly legally capable of legislating contrary to Convention rights, and neither domestic courts nor the ECtHR can prevent it from doing so or invalidate Acts of Parliament that are found to be incompatible. Moreover, if the argument is that the ECHR-HRA model is somehow inconsistent with a looser notion of ‘legislative freedom’ because it makes it politically difficult or costly for Parliament to legislate in breach of certain rights, this runs up against the problem that the existence of such political constraints is neither novel nor confined to the ECHR-HRA model. Dicey himself recognised the way in which political forces cabin Parliament’s notional freedom to legislate as it wishes. Meanwhile, a range of specific phenomena — from the effective dispersal of power via contemporary schemes of devolution to the principle of legality, according to which, absent the clearest contrary provision, courts interpret legislation compatibly with fundamental rights and values thereby forcing Parliament to pay the political price if it wishes to breach them — reflect a constitutional tradition in which legal theory must be viewed through the prism of political reality. The notion that ridding the UK constitution of the ECHR-HRA model of rights protection would restore some ‘pure’ version of parliamentary sovereignty entailing absolute legislative freedom unhindered by political constraints (and the legal phenomena such as devolution and the principle of legality through which they are mediated) is misconceived.
A similar point can be made when we factor in the international law dimension of the ECHR-HRA model. Putting the argument at its highest, it might be said that Parliament’s legislative freedom is constrained by that model — in ways that it is not constrained by the sort of purely domestic phenomena mentioned in the previous paragraph — because for Parliament to enact (or maintain) legislation that breaches the ECHR places the UK in breach of its international legal obligations, which, on one view at least, in turn involves a breach of the rule of law. Such ‘constraining’ of domestic legislative majorities was, of course, very much part of the point of the ECHR, given the extraordinary human rights abuses that formed the backdrop to its adoption. But none of this establishes that the ECHR-HRA model is a peculiar threat to Parliament’s legislative freedom, given that the UK is a State party to myriad international treaties that similarly ‘constrain’ its legislative freedom (or, at least, its freedom to legislate should it wish to avoid placing the UK in breach of its obligations). The case in which the Supreme Court ruled the previous government’s ‘Rwanda policy’ unlawful is a good illustration, given the emphasis it placed not just on the ECHR but also on the Refugee Convention and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as authority for the unlawfulness of deporting someone to a country in which their life or freedom would be threatened or where they would face a real risk of torture or inhuman or degrading treatment.
Elective dictatorship
So much for ‘legislative freedom’. But what of executive freedom? Whereas, for the reasons set out above, the ECHR-HRA model does not, as a matter of law, constrain the legislative freedom of the UK Parliament, it does — because section 6 of the HRA makes it unlawful for the government to breach Convention rights — limit executive freedom. That limit can only be circumvented if the executive is able to persuade Parliament to enact legislation that unequivocally authorises the infringement of such rights — which, while legally possible, is potentially politically costly, given the need directly to confront what is being done through the use of very clear language and the likely reputational damage to the UK if it is seen to be willing to play fast and loose with its international obligations. In a constitutional system in which so much power is concentrated in the executive branch, the ECHR-HRA model stands as an important — albeit ultimately circumnavigable — constraint. At a time when the extent of executive power is being pressed as never before in other mature democracies, this point assumes particular importance.
Where, then, does this leave us if the developing debate about the ECHR is to be taken forward constructively? Kneejerk defences of the existing model that characterise criticism of the existing model as an attack on the notion of human rights (and their protection) itself should be avoided, both because they are misconceived and (from the point of view of those who support such protection) strategically inadvisable. At the same time, arguments at the other extreme, in favour abolishing the current model by withdrawing from the ECHR, must be subjected to the closest scrutiny. And if the aim of withdrawal really is the removal of all constraints upon (as Nagi puts it) ‘an unfettered elected majority in Parliament’, it behoves us to pause and consider whether that is really what we want.
It is well over half a century since Lord Hailsham warned of the dangers of an ‘elective dictatorship’, and it would be naive in the extreme to assume that such dangers have receded in the intervening decades. In the absence of a codified constitution that defines and limits legislative and executive power, the ECHR-HRA model is an important — even if imperfect — safeguard against the dangers that rightly exercised Lord Hailsham. Moving away from that model in the context of a thoroughgoing programme of constitutional renewal and reform that sought to replace old safeguards with new ones would be one thing. But the prospect of such reform in the foreseeable future is, in reality, vanishingly small. And that political reality must surely inform any evaluation of the existing system of human rights protection and of any arguments that advocate its abolition.
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