“I am in the presence of the Ghost of Christmas Yet To Come?” said Scrooge. “Ghost of the Future!” he exclaimed, “I fear you more than any spectre I have seen.”
In 2020, Theresa May will get to hoist a flag she has long had in preparation, when as part of the Conservative’s manifesto she will get to include a repeal of the Human Rights Act 1998, and its replacement with a (yet to be drafted, but to a degree outlined) British Bill of Rights. What is even more concerning to many, is that she is committed to a path yet more radical than her predecessor David Cameron, in that she also plans to extricate Britain from the European Convention on Human Rights (which would entail inevitable expulsion from the Council of Europe). All this in spite of the Convention’s Conservative origins, and contradictory to a long standing Conservative antipathy to incorporated Bills of Rights; that usually centred on a fear of disturbing Parliamentary sovereignty, and by so doing giving the “unelected courts… the final say in determining what the law should be in a democracy”.
Like all manifesto matters, it will undoubtedly be attractively packaged; having been described as “a pledge to withdraw Britain from the European Court of Human Rights (ECtHR) [and] to give the UK Supreme Court the ultimate say as to how those rights are applied”, and indeed since 2011 it has been touted as a “return to traditional English freedoms” within a framework of “Bringing Rights Back Home”. It originally formed part of Michael Howard’s 2005 election campaign, with David Cameron affirming the pledge in 2006 (alongside emphasising ‘responsibilities’ in addition to rights) when he said:
“The act has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country, and at the same time it hasn’t really protected our human rights.”
So given that Brexit means Brexit (whatever that may mean), and to some our exit from the European Union is inevitable, why not, as May and team are spinning her announcement, just make a clean break of it; the clarity (and in some eyes kudos) of exiting the European Union (baby) and the ECHR (bath water) in one tenure.
Why, given its obvious appeal to anyone with an ounce of red, white or blue flowing through their veins, is it arousing such opposition; and so much of that opposition not only cross-party but from some of the country’s most informed and experienced politicians, judges and academics. We have the likes of Alice Donald, joining academic forces with Mark Elliott, and ex-Attorney General Dominic Grieve to counsel strongly against such a decision; whilst the House of Lords’ EU justice committee in May of last year warned:
“[the] government’s proposed bill of rights will hamper the fight against crime, undermine the UK’s international moral authority and could start “unravelling” the constitution”
Well I think the answer is simple enough, for anyone like Ebenezer Scrooge, that has had the courage to dare to imagine a future, (albeit rather unwillingly in Scrooge’s case, and in our case), outside of the Council of Europe; it is something to be feared, and with good reason.
Lawyers or no, we are often told that the ‘devil is in the detail’, but therein must also lie our salvation, and that is certainly true of the Human Rights Act 1998. It is a very well and subtly crafted Act, and to imagine that it can be easily replaced, is just as illusory as the idea that a well crafted Great Repeal Bill will solve all our Brexit woes.
In October 2014, Mark Elliott cited at least six reasons to be concerned with the Conservative Party’s Protecting Human Rights in the UK, even if (as the proposal suggests) the new Bill of Rights would contain all of the rights presently given effect to by the Human Rights Act:
- Convention rights would be ‘glossed’; though seemingly ‘enhanced’ by new and more precise definitions, the net effect would be a reduced scope of some rights, ‘bastardised versions’ in Elliott’s terms.
- Rights, in some instances, would become ‘contingent’ upon having discharged ‘civic responsibilities’; the example he quotes is:
“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.”
which is an erroneous conflation of the long-standing Convention principle of ‘balancing’ or ‘qualifying’ rights, with a particular model of ‘cause-and-effect’ quite alien to any modern day system of human rights.
- Section 2(1) of the Act would essentially be eliminated; the Bill looking to “[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.” This as in many aspects of the proposal fails to capture the actuality, and indeed flexibility of that ‘link’, and suggests the ‘relief from an obligation that they [the courts] do not — and do not believes themselves to — have’.
- The falsity that the Bill will “[e]nd the ability of the European Court of Human Rights to force the UK to change the law” has been discussed in great depth elsewhere; it is simply misleading and as Elliott highlights:
“[the idea 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.”
It also, yet again, fails to capture the nuanced nature of s. 2 (1)’s ‘take into account’ directive, and seems (one might suggest almost wilfully) to misunderstand the system of ‘declarations of incompatibility’ under Section 4.
- The Bill also sets out to hamstring the courts Section 3 ‘interpretive’ capabilities, stating:
“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.”
Elliott suggests, that this, working in tandem with the Bill’s new and ‘glossed’ Convention rights would have considerable ‘practical impact’ on the availability of human rights in the UK.
- But last but not least, the Conservatives propose establishing a ‘threshold’, before one’s human rights are engaged:
“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 is to say nothing with regard to our International obligations, the impact of the Bill upon devolution, or any potential conflicts with “the increasingly vigorous doctrine of common law constitutional rights”.
A year later in September 2015, former Attorney General Dominic Grieve addressed the Faculty of Advocates in Edinburgh, and asked “Is the European Convention working?”.
Coming just a week after Lord Sumption’s assertion of our nation’s ‘pride in their own separateness’, he attempted to tackle the Bill of Rights’ flouted benefits, which include:
- halting the “mission creep” of Strasbourg
- providing clarification of how Article 3 and 8 should be applied in deportation cases
- setting a threshold “below which Convention rights will not be engaged”
- removing the reach of the Convention over British armed forces
In a characteristically impassioned defence (which can be read in full here), highlighting groundbreaking cases such as Ireland v UK and Marckx v Belgium, he was keen to explore and tease out the parallels between the European Court’s interpretive methods, and our own ‘common law traditions’; but also took a far less parochial stand, seeing the court’s steady but inevitable transformation:
“into a court of final resort for some 800 million people, many of them living in states where the principles underpinning the rule of law are often misunderstood, misapplied or ignored.”
He was also keen to highlight:
“[the] paucity of concrete examples that are identifiable in the Government’s list of complaints against the way the Strasbourg Court is interpreting the Convention and the incoherence of its suggested solutions”
Addressing the shortcomings of the UK Borders Act 2007, much as Mark Elliott above he advanced:
“it is difficult to see how any proposed changes to gloss the Convention text itself will make any difference, unless the intention is to create total incompatibility with its principles”
before going on to specifically deal with the Government’s inconsistencies as regard Article 3 rights, and the positioning these arguments in a much wider, international framework.
By turning our back on the Convention, the UK:
“will offer an example and an invitation for it to be ignored by others. It is already the case that countries such as Russia and the Ukraine have used the UK position to procrastinate on implementing judgments. Others will do the same and the Convention will be further challenged and undermined.”
As One Crown Office Row David Scott has pointed out:
The fallout will not be limited to the Council of Europe. The UK position was used by Venezuela in justifying ignoring obligations under the American Convention on Human Rights arising prior to its denunciation in 2013, and the President of Kenya cited it when the UK and others were pressing for cooperation with the ICC, of which Kenya accepts jurisdiction. Were the Convention as a whole to lose authority, we would also lose its beneficial impact as a “benchmark for citation in courts in places such as India and South Africa”
Alice Donald has pointed out the wide ranging scope and potential of Section 6 of the Act; which is to say nothing of the loss of Section 19, which requires that all new Acts of Parliament are required to come with “statements of [Convention] compatibility” or “make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.
Lord Sumption is undoubtedly correct, that these are essentially ‘argument[s] about method’; but there seems to be an overwhelming tide of opinion that the Government’s ‘method’ will result in a seismic shift in our current human rights paradigm. With a consequent narrowing of the scope (indeed a marked narrowing) in some instances, with a complete loss of previously recognised rights in others, that shift is in one direction, and one direction only.
Let’s make no mistake, in simple terms this just equates to less human rights, less ‘check’ on the executive, and on occasions an utter disregard for the notion, which once was considered vital to a modern day understanding of human rights, of ‘balancing’ competing rights.
Essentially making a nonsense of Dominic Grieve’s statement that:
“deservingness cannot be determined a priori.”
this is not ‘human rights with fries’, this is an empty bun, with no hamburger and precious little dressing.
Now no doubt this debate (just as Brexit v Remain has done) will attract its fair share of ‘loaves of opinion’, and precious few ‘crumbs of analysis’, but in contrast to Brexit, in this instance we have the luxury (and after June 23 2016’s referendum it is not to be underestimated) of a three year’s ‘heads-up’; three years to marshal and make public what are quite complex yet highly compelling arguments. That might equate to a sense that we have less room to excuse ourselves from the “I didn’t realise” paradigm, that has haunted the political debate of recent months, but that ultimately has to be seen as a good thing.
Charles Dicken’s most likely made Ebenezer’s final haunting, the ‘last of the spirits’, ‘tall and stately’ for good reason. The writing was on the wall, in large bold copper plate, it was not to be hidden from. Just like Ebenezer we are in the presence of a warning, that is cold and to a degree most chilling, and a warning that is most certainly written in bold copper plate. It is a warning of our Christmas Yet To Come, of all of our Christmases Yet To Come, and we might just be wise to listen carefully to what it has to say.
i. Charles Dickens – A Christmas Carol
ii. Othman (Abu Qatada) v. United Kingdom (European Court of Human Rights) (2012)
iii. The Conservatives – Protecting Human Rights in the UK
vi. Aileen Kavanagh – Constitutional Review under the UK Human Rights Act
vii. Klug F – A Bill of Rights: Do we need one or do we already have one? (2007) Public Law 701
x. Lorna McGregor – Reclaiming Human Rights – http://rightsinfo.org/reclaiming-human-rights/
Why saving the Human Rights Act will be good for your health – Alice Donald
My analysis of the Conservative Party’s proposals for a British Bill of Rights
xiii. Dominic Grieve – Why Human Rights Should Matter to Conservatives – The Political Quarterly, Vol. 86, No. 1, January–March 2015
Is the European Convention Working? Grieve advocates before Faculty of Advocates
xviii. IRELAND v. THE UNITED KINGDOM (Application no. 5310/71) 18 January 1978
xix. MARCKX v. BELGIUM (Application no. 6833/74) 13 June 1979
xx. Human Rights Act 1998 – Section 19
xxii. Lord Goff of Chieveley: Hunter v Canary Wharf Ltd  AC 655; 2 ALL ER 426 (HL)