—Carla M. Zoethout, University of Amsterdam
After the landslide victory for the British Conservative Party on May 7, the Party’s alarming plan with a view to human rights protection in Europe deserves major attention. As early as October 2014, Prime Minister David Cameron announced that his party will ‘end the ability of the European Court of Human Rights (ECtHR) to force the UK to change the law’.[1] It has even considered withdrawing from the European Convention of Human Rights.[2] Furthermore, the Conservatives made it clear they wanted to scrap ‘Labour’s Human Rights Act’ (the Act which incorporates the European Convention into British law) and replace this with a British ‘Bill of Rights and Responsibilities’. Does this mean another Brexit – this time from the European Convention?
The European Convention, with its 47 Member States ranging from Belgium to Russia and from Turkey to Norway, is the human rights treaty of Europe, not least because of its authoritative Court which functions as a constitutional court for Europe. It goes without saying that an opt-out of the Convention by the United Kingdom would have far-reaching consequences–for the international reputation of the United Kingdom, for the position of the European Court of Human Rights within the Council of Europe, and for the organization of the European Union (which requires its members to comply with the very Convention). And these are only three of the most obvious problems. But do things really go that far? What are the reasons for the proposals?
Why?
Of course, all of this does not come out of thin air. In fact, soon after the introduction of the Human Rights Act (“HRA”) in 1998,[3] the Act came under serious attack. The first initiatives in drafting a ‘home-grown Bill of Rights’ even go back as far as 2007.[4] Why so?
Firstly, it cannot be denied that Britain has had difficulty both understanding and accepting many of the Court’s decisions. One only has to think of the case of Hirst v. UK,[5] in which the ECtHR decided the British ban on voting rights for prisoners violated the Convention; the case of Abu Qatada which prevented the UK from deporting a convicted terrorist; and Vinter v. UK[6] in which the Strasbourg Court held that whole life-terms were contrary to Article 2 of the Convention (the right to life). The ‘bad’ reputation of the HRA in the UK may have a lot to do with the way the judgments of the ECtHR were reported in the press. That is to say, in the tabloids. In his highly interesting and informative contribution to the UK Human Rights Blog, Adam Wagner refers to this way of reporting as ‘The Monstering of Human Rights’.[7] Wagner demonstrates how the negative press coverage of human rights cases has become a regular feature.
Secondly, the HRA includes a provision (Section 2) which obliges the courts to take the case-law of the Strasbourg court ‘into account’ in their decisions concerning Convention rights. That means–according to many–that the case-law of the Court is in effect determinative for decisions in British courts. And that while the Court’s approach towards the Convention is regarded by critics as ‘mission creep’, the Court broadens its original meaning in a questionable way when it interprets the Convention as a ‘living document’.What is more, the British courts have gradually become more ‘activist’ and have followed Strasbourg jurisprudence. The extended use of judicial review (and particularly the ‘subservient’ role towards Strasbourg) has not been appreciated by everyone, to put it mildly.[8]
Thirdly, maybe an even more fundamental problem with the HRA is the ‘declaration of incompatibility’.[9] The highest courts can–when confronted with two clashing provisions such as a British Act of Parliament and a Convention right–issue a so-called ‘declaration of incompatibility’. The result is that the final word is still up to Parliament. It is the democratically legitimated institution which decides whether or not to change the law. This raises a contrast with the Convention system: when Strasbourg has spoken, the Member states are bound by Article 46 of the Convention to comply with the decision. No parliamentary sovereignty here–a feature of the UK that continues to complicate compliance with the Convention.
How?
The initial plan was considerably weakened in the Conservative Party election manifesto. The Conservatives still hold on to repealing ‘Labour’s Human Rights Act’ and replacing this with a British Bill of Rights.[10] However, this Bill will remain faithful to the basic principles of human rights of the European Convention. But as the manifesto puts it: ‘it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.’[11]
And Now What?
After all, the Tories’ plans to introduce a Bill or Rights for Britain may turn out to be less radical than they sound. Why so?
One reason concerns the sovereignty of Parliament and the position of the majority party. Whatever the contents of an Act of Parliament (be it the accession to the EU or the position of life peers), it can be repealed by a subsequent Parliament if it pleases the latter to do so. No law is embedded, in other words. What may amount to a constitutional revolution in other countries–scrapping the HRA (provided something ‘better’ is put in place)–is in itself an accepted course of action in the UK (that does not mean to say it will not be much disputed, of course).
Secondly, as several commentators have pointed out (and the manifesto itself admits), even if a home-grown Bill of Rights is being drafted, this document will have to guarantee largely the same rights as the Convention.
Finally, for the time being leaving the Convention does not seem a realistic option–the premise is seeking a solution within the Council of Europe. That means the European Court of Human Rights will remain the final arbiter when it comes to human rights protection, even though a new Bill of Rights will undoubtedly try to diminish the Court’s role at the national level.
In the end, things may not be quite as bad as they seemed, initially. So much the better. The European Convention of Human Rights is too important a human rights system to be simply dismissed by one of its founding members.
Suggested Citation: Carla Zoethout, A British Bill of Rights–Why, How and Now What?, Int’l J. Const. L. Blog, May 15, 2015, at: http://www.iconnectblog.com/2015/05/a-british-bill-of-rights-why-how-and-now-what
[1] See ‘Protecting Human Rights in the United Kingdom’, The Conservatives’ Proposals for Changing Britain’s Human Rights Laws, https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf (last accessed May 10, 2015), p. 6.
[2] Idem, p. 8.
[3] In ‘Protecting Human Rights in the United Kingdom’, the Act is consequently being referred to as ‘Labour’s Human Rights Act’ (the law was adopted at the time when the Labour Party was in power and Tony Blair was Prime Minister.
[4] http://www.parliament.uk/business/publications/research/key-issues-for-the-new-parliament/security-and-liberty/from-the-human-rights-act-to-a-bill-of-rights/ (last accessed May 10, 2015).
[5] Hirst v. UK, Application No. 74025/01, ECtHR 6 October 2005. For an elaborate analysis of the debate on the relationship between the UK and the European Court of Human Rights as a result of the Hirst decision, see: Ed Bates, ‘Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg’, Human Rights Law Review, 2014, , Vol. 14, p. 503-540.
[6] Vinter and others v. UK, ECtHR 9 July 2013, Application nos. 66069/09, 130/10 and 3896/10.
[7] Talk to University of Liverpool Conference on Human Rights in the UK Media: Representation and Reality, published on http://ukhumanrightsblog.com/2014/09/22/the-monstering-of-human-rights/ (last accessed May 10, 2015).
[8] Once of the most outspoken critics of the ECtHR is Lord Hoffmann: ‘The proposition that the Convention is a ‘living instrument’ is the banner under which the Strasbourg court has assumed power to legislate what they consider to be required by ‘European public order’. I would entirely accept that the practical expression of concepts employed in a treaty or constitutional document may change. (…) But that does not entitle a judicial body to introduce wholly new concepts, such as the protection of the environment, into an international treaty which makes no mention of them, simply because it would be more in accordance with the spirit of the times.” ‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19 March 2009, p. 21. https://www.judiciary.gov.uk/announcements/speech-by-lord-hoffmann-the-universality-of-human-rights (last accessed May 10, 2015) As an example of a British court following the ECtHR’s case-law he refers to: Birmingham City Council v Oakley [2001] 1 AC 617, 631-632.
The landmark cases by the ECtHR were Golder v United Kingdom (Appl. No. 4451/70, ECtHR 21 February 1975), Tyrer v United Kingdom (Appl. No. 5856/72, ECtHR 25 april 1978), Marckx v Belgium (Appl. No. 6833/74, ECtHR 13 June 1979 and Airey v Ireland (Appl. No. 6289/73, ECtHR 9 October 1979).
[9] See on this ‘dialogic system’ of judicial review and its comparative perspective: Mark Tushnet , Advanced Introduction to Comparative Constitutional Law, Edward Elgar, Cheltenham, UK, Northampton, MA, USA 2014, chapter 3.
[10] The manifesto no longer refers to ‘Responsibilities’.
[11] The Conservative Party Manifesto 2015, p. 73.
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