Public Law for Everyone

A recent conference marking the 75th anniversary anniversary of the European Convention on Human Rights provided a sobering opportunity for reflection on possible trajectories of human rights protection in the United Kingdom in a political era increasing characterised by populism.

I recently had the pleasure of attending, and chairing a session of, an excellent conference organised by the Bingham Centre for the Rule of Law and the University of Leicester’s Centre for European Law and Internationalisation, respectively marking the 75th and 35th anniversaries of the European Convention on Human Rights (‘ECHR’) and the Venice Commission (or the European Commission for Democracy through Law as it is formally known). This autumn also marks the 25th anniversary of the entry into force of the Human Rights Act 1998 (‘HRA’), which gives effect to the ECHR in the domestic law of the United Kingdom. That anniversary, along with the others, loomed large in discussions at the conference, not least in the light of the policy of ECHR withdrawal now advocated by the UK’s two principal right-wing political parties — the Conservatives and Reform UK — against the wider backdrop of a rising tide of populism in Europe and beyond. The purpose of this post is not to provide a report on the conference. Rather, it is to offer some personal reflections, prompted in part by the stimulating talks that were given. In that regard, two points seem particularly important to me concerning the ‘othering’ of human rights and the endgame of those who are in the vanguard of calling for the UK’s withdrawal from the ECHR.

‘Othering’

It was noted in one of the talks that the UK implements its obligations under the ECHR in an especially direct and faithful manner. This is so for a combination of two reasons. First, the UK lacks a written constitution or anything resembling a constitutional bill of rights, meaning that (common law constitutional rights, to which I will return below, aside) the ground was clear when the HRA was introduced. On the other hand, the HRA itself places the rights set out in the ECHR front and centre (rather than, for instance, institutionalising a bespoke set of domestic rights that imperfectly align or overlap with Convention rights). That is achieved by including the Convention rights verbatim in a schedule to the HRA and making those rights the exclusive subject of the various obligations (relating to such matters as judicial interpretation of legislation and the conduct of public authorities) imposed by the Act. This is very different from the approach adopted in many other Council of Europe Member States, in which domestic constitutional rights form the primary focus of human rights adjudication. In such systems, ECHR rights are upheld indirectly. That might be because the degree of alignment between domestic and Convention rights means that enforcing the former indirectly results in the realisation of the latter; or it might be because ECHR rights are used to guide the interpretation of relevant domestic constitutional rights provisions, such that through such an interpretive process the enforcement of domestic rights also secures respect for Convention rights.

In normative terms, the important issue is not the choice of methodology but whether whether Council of Europe Member States have in place legal arrangements that yield ECHR-compliant outcomes. And it is certainly true that the UK’s system is particularly effective in the sense that placing Convention rights front and centre creates ideal conditions for Convention compliance, whether in terms of public authorities discharging their direct obligation to respect Convention rights or in terms of direct judicial enforcement of those rights. The alternative approach, whereby Convention compliance is refracted through the primary lens of domestic constitutional rights, is, of course, perfectly capable of delivering Convention compliance, but it cannot be denied that the UK’s approach is notably direct and effective.

However, while the directness of the UK’s ECHR model, as set out in the HRA, might be considered to be a particular strength in one sense, it is arguably a weakness when viewed in terms of the optics. One effect of the UK’s human rights model is that whenever human rights are in play, it is the UK’s obligations under the ECHR that are in the spotlight. This serves to feed the narrative that human rights are ultimately ‘imposed’ on the UK by a ‘foreign’ court. We might think of this as the ‘othering’ of human rights, whereby they are characterised as something external, even alien. Such a narrative is ill-conceived, bearing in mind the UK’s role in contributing to the drafting the ECHR and the degree of alignment between the Convention and rights and norms long recognised at common law. Nevertheless, that narrative has gained considerable political traction in recent years and clearly resonates, however ill-founded it might be. All of this can be explained in part by the fact that ever since it was adopted, the HRA has been caricatured by a generally hostile media keen to seize upon isolated, often misrepresented, judgments that are said to show that the HRA fails to align with what ‘common sense’ dictates. And this narrative is advanced not only by the media but also by politicians, including senior members of the current government. For instance, in a speech earlier this year, Shabana Mahmood — then the Lord Chancellor and Justice Secretary, now the Home Secretary — said that the ‘application of [human] rights [has begun] to feel out of step with common sense’.

In the current political climate, it is highly unlikely that a solution to this problem of perception lies in replacing the HRA with a ‘British Bill of Rights’ — an idea that has been considered before but which has never succeeded in getting off the ground. Nevertheless, challenging the ‘othering’ narrative — which is, to some extent, sustained by the model of human rights protection the UK chose to adopt when it enacted the HRA over a quarter of a century ago — is essential if the debate about the future of human rights in the UK is to be conducted in a way that is grounded in fact.

Those facts, properly understood and effectively communicated, are compelling. For instance, the idea that the UK is dictated to and micro-managed by the European Court of Human Rights is straightforwardly false. In 2024, of the 332 applications concerning the UK that were dealt with by the Court, 328 were declared inadmissible or struck out and an adverse judgment was delivered in only one case. Meanwhile, as a recent report by the Bonavero Institute explained in relation to an issue that attracts particular political attention in the UK at present, ‘the number of foreign national offenders who successfully appeal against deportation on human rights grounds alone is very small compared to the overall number of foreign national offenders — 0.73% in the latest year for which data is available’. And, more generally, as Lorenzo Acconciamessa has observed (‘The Case Law of the ECtHR in 2022: Strasbourg in the “‘Age” of Protocol No. 15’ in Czech et al (eds), European Yearbook on Human Rights 2023 (Cambridge: Intersentia, 2023)), the approach of the Strasbourg Court in recent years — including now under the influence of Protocol 15 of the Convention, which places renewed emphasis on the principles of subsidiarity and the margin of appreciation — has taken a ‘procedural turn’. This means that it focuses to a greater extent on the adequacy of domestic arrangements for protecting rights and places less weight on the Strasbourg Court’s own view about whether national authorities have appropriately balanced rights and competing relevant factors.

But facts can get us only so far, as was widely acknowledged by conference participants. That point is made vividly by Alan Greene, who observes that, in this context, ‘[l]awyers and academics … find themselves in the difficult position of expending intellectual labour to make legal arguments rebutting … fictitious claims’ in a political climate that is increasingly unconcerned about the truth of such claims. In such circumstances, the risk arises of different participants in the debate talking past one another because the argument does not proceed on common ground. Or, as Greene puts it, lawyers and academics who continue to seek to engage with the ‘technocratic’ aspects of the debate find themselves in the position of ‘bringing facts to a vibe fight’.

Endgame

The second point that stood out to me when reflecting on the talks and discussions that took place at the conference relates to the endgame — and the underlying agenda — of those who advocate ECHR withdrawal. As with Brexit, arguing against ongoing participation in a set of international arrangements is one thing. But the harder question is what those adopting such a position are arguing for. The trite answer, of course, is: ‘withdrawal from the ECHR’. But that merely invites the question: ‘And then what?’ Subject to the undeniable complications (clearly set out in a recent paper by Colin Murray and Aiofe O’Donoghue) arising from the Belfast Agreement and the Windsor Framework in respect of Northern Ireland, the ‘in or out’ question is a binary one; but the ‘what next’ question manifestly is not, and requires much more careful thought. The range of options, is of course, almost endless. It includes doing nothing and relying on the common law; enacting a domestic bill of rights that might or might not have some features in common with the HRA; a project of constitutional renewal involving an entrenched bill of rights; or even the embedding of rights within a new, codified constitution.

But we can, of course, discount the latter options. Whatever questions might remain unanswered about the agenda of those advocating ECHR withdrawal (and therefore HRA repeal), progressive constitutional reform is undoubtedly not one of them. The most likely options, therefore, are doing nothing (meaning reliance on the common law) or the enactment of a domestic bill of rights. What would this mean for the level of human rights protection in the UK compared with that which applies at present? In almost all conceivable scenarios, it would result in courts having more limited powers to uphold human rights — which, depending on one’s perspective, we might frame either in terms of a weakening of human rights protection or a strengthening of the political branches’ authority to decide how rights and competing objectives should be balanced against one another. Whether limiting the judiciary’s role and enhancing the latitude of the political branches is a good or a bad thing is a normative question on which there are differing views. In contrast, the important point for present purposes is the empirical one that ECHR withdrawal would in fact have those effects — which, in turn, reveals something of the normative forces driving arguments in favour of withdrawal.

That withdrawal would play out in such a way follows for two reasons. First, if the common law alone were to be relied upon post-withdrawal, the range of rights capable of judicial protection would almost certainly be narrower. I say ‘almost’ because it is at least possible that the common law would, post-withdrawal, turn out to have absorbed, via a process of osmosis, at least some of what is currently found in the Convention, meaning that those in favour of withdrawal would be disappointed to find that the common law was not returned, in prelapsarian fashion, to its pre-HRA state. (A basis for arguing in favour of such common law dynamism can be found in a seam of Supreme Court jurisprudence from the mid-2010s (including Osborn v Parole Board [2013] UKSC 61) that now seems a distant memory, bearing in mind the argument advanced by the late Conor Gearty in a posthumously published piece in which he charged today’s Supreme Court with a degree of conservatism so great that it is ‘quietly editing the Human Rights Act out of existence’. Even if we were to think that claim overstated, it is undeniable that the Supreme Court’s human rights — and, more generally, its constitutional — jurisprudence is today markedly different from that of the Hale court.) But even if the common law has absorbed something from the Convention, it is unlikely in the extreme that we would find, upon the ripping away of the ECHR-HRA regime, that beneath the surface the common law had evolved into a facsimile of that regime.

Second, what about a domestic bill of rights? In principle, it could include all of the Convention rights. It could even reproduce them word for word, notwithstanding withdrawal from the ECHR itself, rendering fully domestic that which currently derives from the Strasbourg system. That, of course, is unlikely in the extreme, given current and probably future political circumstances. But even if a domestic bill of rights did reproduce the Convention rights word for word, the crucial point for present purposes is that it would still result in weaker judicial protection (or greater political freedom in respect) of those rights. That follows because a domestic bill of rights would lack the crucial ingredient that makes the HRA so much more potent that it appears on the surface. For all that the HRA is infused with features that makes it formally consistent with parliamentary sovereignty — courts cannot strike down incompatible Acts of Parliament; declarations of incompatibility do not affect the validity of such Acts, and so on — it ultimately has the effect of placing on the domestic centre stage obligations that are binding on the UK as a matter of international law. In this way, while (for instance) a declaration of incompatibility does not invalidate an Act of Parliament, and while Parliament and the government remain free to ignore such a declaration, the reality is that declarations of incompatibility anticipate the future prospect of an adverse Strasbourg judgment that would trigger the UK’s international obligations under the ECHR to remedy matters. In this way, the HRA blurs the boundary between domestic law (in which parliamentary sovereignty reigns) and international law (in which the domestic notion of parliamentary sovereignty cuts no ice whatever), thereby facilitating in the UK a model of human rights protection substantially stronger than its formal compatibility with parliamentary sovereignty implies.

Thus, it seems to me, it is undeniable that a domestic bill of rights, unmoored from the ECHR, would weaken the capacity of UK courts to enforce relevant rights, once we discount politically unlikely possibilities such as an entrenched bill of rights or an even wider project of progressive constitutional renewal. It is at this point that we can move from empirically observing the likely implications of ECHR withdrawal to identifying the endgame — and the normative engine that drives it — envisaged by proponents of withdrawal. While there are doubtless different strands of opinion within the broad church that is now coalescing on the political right around ECHR withdrawal, it is fair to say that a good deal of the argument draws on the ‘othering’ narrative considered above, with the primary objection to the UK’s existing human rights regime framed in terms of the imposition of external norms. Viewed thus, it is the perceived ‘foreignness’ of the existing regime that forms the central objection. But once the likely empirical consequences of withdrawal are frankly acknowledged, it becomes clear that the normative objection is not confined to the enforcement of human rights by an international court. Rather, it is a much broader objection to the balance between judicial and political power struck by the ECHR-HRA regime, implying opposition not merely to ‘foreign’ or ‘external’ rights, but to investing judges, whether domestic or European, with consequential powers to uphold human rights at all. In this way, nationalistic antagonism to the UK’s participation in a regional human rights regime is can be seen as the Trojan horse it undoubtedly is, and revealing a deeper antipathy to the very notion of enforceable human rights that impose meaningful constraints on majoritarian political institutions.