The article by Martin Howe QC in the July edition of Counsel, argues for both a British Bill of Rights to replace the Human Rights Act 1998 (HRA 1998) and for the UK’s withdrawal from the European Convention on Human Rights (the Convention). The Conservative Party manifesto and the paper published by the party last autumn suggested that a new Bill of Rights should incorporate the text of the Convention but then restrict its scope, through the insertion of interpretation clauses, so as to effectively reduce the ability for some of those rights to be asserted.
No sacred totem
Martin Howe seeks to give to Parliament the final “judgment call” between one right and another, or between a right and other considerations such as the safety of the public. In endorsing this, he suggests that HRA 1998 is regarded by some, particularly lawyers, as a “sacred totem which under no circumstances must be touched or even questioned” and that its replacement would lead to human rights enjoying greater public respect.
As a Conservative, who believes that the government’s present proposals are seriously flawed, I have never seen HRA 1998 as a “sacred totem”. It is simply a rather conservative way by which convention rights have been made accessible in our country. The difficulty with the government’s proposals is that they will not only wholly undermine the UK’s leading role in promoting human rights, to the detriment of our national interest, but that they will also do little or nothing to deliver the highly questionable benefits that are claimed will result from implementing them. They will also produce plenty of undesired and undesirable problems as well.
Our adherence to the Convention is entirely in line with a national tradition of international engagement to make the world a safer and better place for its inhabitants. All such international engagement places limits on sovereign action in so far as it leads to mutual undertakings between states as to their conduct. Whether it is the Charter of the United Nations or a bilateral fishing agreement, the UKs scope of action is circumscribed as a consequence. In many such agreements there are mechanisms for binding dispute resolution by a third party or tribunal in the event of disagreement over interpretation, which is precisely what exists with the power of the European Court of Human Rights (ECtHR) to interpret the Convention.
Operation of the ECtHR
I accept that the operation of the Strasbourg Court has not been perfect. It has shown signs at times of being the victim of its own transformation from an international tribunal dealing with a very limited number of cases into a final court of appeal on human rights issues for some 700 million people. It has sometimes micro-managed the Convention too much and sought to impose a uniformity of practise that is not desirable in an international treaty that specifically gives to national parliaments and courts the primary obligation to uphold it. But there is growing evidence that these problems, as shown by cases such as that on prisoner voting, are now being addressed.
Since the Brighton Declaration of 2012, negotiated by Ken Clarke when Lord Chancellor, there has been a welcome trend of increasing flexibility by the court. This has been helped by the important shift of our own national courts away from excessive deference to Strasbourg Court decisions. The dialogue that has thus occurred in cases such as the use of hearsay in our criminal courts (R v Horncastle & Others  UKSC 14) or over political advertising and Art 10 on freedom of expression, (Animal Defenders International v the United Kingdom (Application no. 48876/08)) has been positive and constructive and there is nothing to suggest that this will not continue.
Placing ourselves outside the Convention will undoubtedly damage its operation. As an international treaty, its success is dependent on peer group pressure among its adherents to promote respect for it and help ensure that its judgments are implemented. As any study of the Strasbourg Court’s current workload and judgments shows, it has been at the forefront of improving human rights in countries where the rule of law is still fragile – a point made powerfully to me by the Georgian Public Defender (ombudsman) on his recent visit to London, who viewed it as key to his developing respect for human rights norms in his country. It is already the case that states such as Russia are using the UK position to try to procrastinate on implementing judgments. And as we saw with the changes to the Jordanian criminal justice system as a result of the case of Abu Qatada, its influence can be positive outside of the signatory states as well. For all the criticisms that can be made of its operation, the Convention has proved and is proving to be, the single most cost-effective tool currently available for promoting human rights on our planet. What we do is likely to be decisive as to whether or not this continues. If we are instrumental in damaging its effectiveness it will sit very strangely with our settled policy of promoting human rights globally.
Furthermore, the unintended consequences cannot be ignored. Any withdrawal from the Convention risks a serious problem with the EU at a delicate time for our renegotiation of membership. Adherence to the Convention is explicit in EU membership. At present, the Court of Justice of the European Union (CJEU) in Luxembourg, which is quite separate from the Strasbourg Court, is confined to applying the Convention, as enshrined in the Charter of Fundamental Rights, only to matters within EU competence. But it has been expansive in this respect and the government has properly tried to limit this trend. But I can think of nothing more likely to accelerate it than claims being brought before the CJEU by persons who consider that they are being denied Convention rights and can get no redress either domestically or at Strasbourg. The likely consequence is that the CJEU will expand its jurisprudence to give redress and these judgments, unlike those from Strasbourg, will have direct effect here. I note that this issue is overlooked by promoters of the government’s policy.
Domestically, any non-compliance with the Convention calls into question as well the devolution settlements for Wales, Scotland and Northern Ireland, which enshrine Convention rights and must regulate the operation of all devolved powers. Parliament could, of course, legislate to change this position, but there is ample evidence that this would be against the will of the devolved administrations. In the case of Northern Ireland, it is also part of the Belfast Agreement, an international treaty with the Irish Republic. At a time when the future of the UK is in question in respect of Scotland and the Northern Ireland peace process is still fragile, it opens the prospect of serious political discord, quite apart from the possibility of our Supreme Court having to operate different rights systems in one country. For a party committed to the Union these outcomes would be entirely contrary to our fundamental aims.
Advocates of a British Bill of Rights argue that, once enacted, problems caused by the current judicial interpretation of the text of the Convention will cease. But unless it is contemplated that the Convention rights are to be substantially diminished by interpretative clauses which contradict the meaning of each of the rights, it is difficult to see how this will happen. Convention rights interpreted by our own Supreme Court are most unlikely to eliminate the cases where the government finds that it cannot do what it wants or where the tabloid press expresses anger at rights being claimed by those it sees as undeserving. Unless, for example, we also renounce other obligations, such as those in the UN Convention on the Rights of the Child or the Convention on the Prohibition of Torture, exactly the same issues will continue to arise in cases on deportation.
Any policy pursued by government should be subject to a rigorous cost/benefit analysis before it is taken forward. This is why I greatly welcome the announcement that there will be further consultation on the Bill of Rights before any legislation is published. One question that needs to be asked repeatedly is what the anticipated benefits of change will in fact be. While a Bill of Rights that is compatible with the Convention may be of value to strengthen public acceptance of human rights, one that is not will damage us all. I note with interest that the Prime Minister and the Justice Secretary have recently accepted that it is not a desirable outcome of any Bill of Rights for the UK to leave the Convention. But this must now lead to some clear thinking on the rest of the proposals. ●
Follow the debate in Counsel. See also: “A view from Strasbourg”, Dean Spielmann, President of the European Court of Human Rights, April 2014; “A view from London”, Lord Judge, former Lord Chief Justice, October 2014; “The case for the Human Rights Act”, Sir Keir Starmer, January 2015; “In or out: influencing the EU”, Evanna Fruithof, Consultant Director, Bar Council (Brussels), May 2015; "Getting it right", Martin Howe QC, July 2015.
Contributor The Rt Hon Dominic Grieve QC MP