It allows individuals in the UK to enforce their rights in their local courts. It also requires public authorities to respect the rights of those that they deal with. Each of the rights protected is taken from the European Convention on Human Rights (ECHR), which was drawn from the Universal Declaration of Human Rights (UDHR) adopted by the UN General Assembly on 10 December 1948. A simple set of minimum standards of decency for humankind to cling on to going forward.
Conservative plans for human rights reform
Against that background, it is perhaps surprising that instead of being celebrated as a constitutional triumph, the fate of the HRA is up for grabs on 7 May 2015, the date of the next general election. Labour and the Liberal Democrats want to keep the Act. Conservative plans for reform include not only the repeal of the HRA and its replacement with a British Bill of Rights, but also proposals to stop the European Court of Human Rights (ECtHR) “binding over” (as they put it) the Supreme Court, to clarify how rights will apply in cases of deportation and other removal of persons from the UK and to limit human rights protection to “the most serious cases”. (See Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws, October 2014.)
Two questions dominate the debate. First, whether our courts are currently shackled because they are somehow bound to follow the decisions of the ECtHR. Second, whether, but for the HRA, the Executive could act with unfettered discretion when removing foreigners from the UK.
Does the HRA shackle our courts?
As to the first question, there are two strands of the argument and it is sensible to consider them separately. First, there is the question of whether the HRA undermines the role of our courts in deciding on human rights issues in this country. Second, there is the wider issue of whether the HRA, or even perhaps the ECHR itself, undermines the sovereignty of Parliament. As to the first issue, s 2 of the HRA is clear: “a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any... judgment, decision, declaration or advisory opinion of the European Court of Human Rights...”
Obviously the phrase “take into account” is open to interpretation, but it is equally obvious that it does not require our courts to apply or follow the judgments etc of the ECtHR. As Lord Phillips made clear in 2009, “although the domestic court was required to take account of the jurisprudence of the European Court on Human Rights... where, on rare occasions, the domestic court was concerned that the European court’s decision insufficiently appreciated or accommodated particular aspects of the domestic process, it might decline to follow the decision.”
Against that background, to describe the ECtHR as “binding over” our Supreme Court is not only to misunderstand the purpose and intent of s 2 of the HRA, but also to ignore the principle of dialogue between our courts and Strasbourg that our judges have been so careful to craft.
The sovereignty issue
Turning to the sovereignty of Parliament, in truth, this has got nothing to do with the HRA at all. The argument about sovereignty is actually an argument about the relationship between international law and domestic law. It is not the HRA that obliges the UK to respond to the judgments of the ECtHR. It is Art 46(1) of the ECHR itself. Article 46 states that: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” The UK signed up to that international obligation when it signed the ECHR in 1950. Repealing the HRA is wholly irrelevant. It would have no effect whatsoever on the UK’s obligations under Art 46. The only way is out.
Turning to the second issue, lurking behind the proposals for reform put forward by the Conservatives is the idea that repealing the HRA and/or withdrawing from the ECHR would free up the Government to remove foreigners from the UK, notwithstanding any threat of death, torture or ill treatment, or serious impact upon children left behind. But that argument runs into very significant difficulties. As a leading light in the UN, the UK has long recognised the importance of the international obligations spawned by the UDHR which bind like-minded states together for the collective good of all. That is why the Government headed by none other than Mrs Thatcher ratified the UN Convention against Torture (UNCAT) as long ago as December 1988. UNCAT prohibits the removal of foreigners at risk of ill-treatment in pretty well the same terms as the ECHR. It is frequently cited in our courts and has near universal international support – 155 state parties have now accepted its terms.
Whichever way you look at it, that appears to drive a coach and four through the proposals advanced by the Conservatives, not least because the proposals state in terms that: “Our new Bill will clarify what the test [for removal of individuals at risk of ill-treatment] should be, in line with our commitment to prevent torture and in keeping with the approach taken in other developed nations.” The approach taken in other developed nations is clear and set out in UNCAT, which is consistent and reinforces the ECHR. The same sense of international legal order that led Mrs Thatcher to ratify UNCAT later led John Major in 1991 to ratify the UN Convention on the Rights of the Child. That international agreement puts the rights of children at the centre of decision making even in controversial cases involving the removal of foreigners from the UK. If anything, it goes further than the ECHR. It too is frequently cited in our courts and has near unanimous international support.
Is it to be suggested that Parliament should enact legislation that deportation decisions could be made without regard to any relevant international obligations? Or are those putting forward the Conservative proposals prepared to renounce these core UN commitments entered into by leading members of their own party? If not, it is hard to see what renouncing the ECHR will achieve in practical terms.
The case for the HRA is a strong one. It is a moral case based not only on learning from the history of some of the worst violations of human rights before and during the Second World War, but also on the here and now. It should not be viewed suspiciously as a burden, but promoted as an instrument of social cohesion and public purpose.