Coalition deadlock over the law and politics of human rights

The UK Commission on a Bill of Rights seeks to unravel the disputes about national autonomy that have arisen from Britain's relationship with the European Human Rights Convention. Regardless of their findings, this inquiry should not be used as evidence to repeal the Human Rights Act. 

Geoffrey Bindman
29 August 2012

As tensions grow in the coalition over the economy and Lords reform, conflict between Conservatives and Lib Dems over human rights has been out of the public eye. Yet it has continued to simmer under the surface. There is no indication that the Conservative desire to repeal the Human Rights Act has diminished, and the Lib Dems remain committed to its preservation. The Commission on a Bill of Rights established last year as a means of defusing the issue is required to complete its report by the end of the current year. The members were carefully chosen to achieve approximate parity between those likely to support each of the two opposing positions. Their report is thus unlikely to resolve the conflict. 

The terms of reference of the Commission's inquiry are not, however, restricted to the Human Rights Act which is not even mentioned in them. The main focus is on whether a UK bill of rights should be created that "incorporates and builds on all our obligations under the European Human Rights Convention, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties".  In addition, the Commission is asked to provide advice to the Government on the reform of the Court of Human Rights in Strasbourg ahead of  and following the UK's chairmanship of the Council of Europe.

Enshrining human rights in domestic law and the reform of the European Court appear distinct issues but they are interdependent. The first cannot avoid the controversy over the Human Rights Act. Should the Human Rights Act be retained as the vehicle for implementing the rights set out in the European Convention, or should it be replaced by a Bill of Rights? The second matter is less controversial. There is general agreement that the Court needs reform.

The Court is an organ of the Council of Europe of which the United Kingdom from November 2011 until 14 May 2012  held the rotating chair. In that capacity it hosted a conference of the 47  member states at  Brighton in April 2012 to review the current operation of the Court. This was the latest in a series of conferences seeking to grapple with the the huge proliferation of cases largely engendered by the rapid expansion of the number of participating countries.

The Prime Minister has made no secret of his hostility towards the Court and the HRA. Indeed he has carried it to extreme lengths by endorsing as true some of the absurd fictions about human rights law peddled by some tabloid newspapers (for example, the false claim made by the Home Secretary Theresa May that a convicted foreign criminal avoided deportation because the HRA prevented him from being parted from his cat!). Of course sometimes the courts disagree with government policy. But the proportion of cases from Britain which succeed in Strasbourg is smaller than from any other member state. Only 3% of complaints are found admissible and only about 0.5% ultimately succeed.

The European Court in January 2012 blocked the deportation of Abu Qatada to stand trial in Jordan on the ground that evidence obtained by torture was likely to be relied on. Article 3 of the Convention says "No one shall be subjected to torture or to inhuman or degrading treatment or punishment. " Few would disagree with this absolute prohibition, but ministers were angry that the attempt to expel him from Britiain had failed.  In 2005 the Court had rejected the UK's blanket denial of the franchise to all convicted prisoners; and, in 2001, the House of Lords declared  indefinite detention without trial of non-citizen terrorism suspects to be incompatible with the Convention, forcing the then government to introduce new legislation to stop it.

In the wake of the Abu Qatada ruling, the Prime Minister publicly accused the court of having a corrosive effect on popular support for human rights by interfering in  matters which were properly matters for the elected government. He argued that the court should  defer to the policy decisions of  national authorities - governments courts and parliaments.

He was immediately challenged by Sir Nicholas Bratza, the British nominee to the court,who was then its president. Sir Nicholas maintained that the Court gave appropriate recognition to the right of the member states to comply in their own way with the requirements of the Convention.  In other words it allowed a sufficient "margin of appreciation" to state governments and domestic courts. "It is disappointing ", said Sir Nicholas," to hear senior British politicians lending their voices to criticisms more frequently heard in the popular press, often based on a misunderstanding of the (European) court's role and history, and of the legal issues at stake."

To what extent should the member states be able to decide for themselves how to implement the Convention, free from supervision or direction from the Court?

All those attending the Brighton conference acknowledged that reform was needed, in order particularly to reduce the backlog of cases. Reforms had already been agreed upon in  Protocol  14, adopted in 2010. Although the conference did not accept UK proposals which would have restricted the right of individual petition and the independence of the court in interpreting the Convention, it acknowledged that the primary responsibility for guaranteeing human rights rests with the  government, parliament and the courts of each individual state. It supported renewed efforts to cut down the backlog of cases without curtailing access of individuals to the court.

Sir Nicholas pointed out that considerable progress is already being made but that the real responsibility lies with the member states to make sure that the Convention is fully implemented in their jurisdictions. On the issue of margin of appreciation, there is broad agreement . Similarly on "subsidiarity" - the principle of delegation of responsibility for implementing the Convention to the states themselves. The rules and practice of the court already provide for both and recent decisions of the Court have demonstrated a greater willingness to give discretion to member states. In December 2011 the Grand Chamber of the Court reviewed at the request of the UK Supreme Court a ruling in the case of Khawaja v. UK that a conviction based solely on hearsay evidence was a violation of article 6 (right to a fair trial). The Court reversed its earlier decision, holding that there was no automatic violation where there were counterbalancing factors including strong procedural safeguards. Thus a healthy dialogue between the European Court and the national court resulted in modification of the Court's position.

After the Brighton conference both the Lord Chancellor Ken Clarke and the Attorney-General Domnic Grieve expressed satisfaction with the outcome. The Brighton Declaration commits the Court to non-intervention "where national courts have clearly applied the Convention properly". Dominic Grieve said the Declaration "sets out clearly that the Court should not routinely overturn the decisions made by national authorities -and it should respect different solutions and different approaches between states as being legitimate."

So let us hope for a calm and consensual reconciliation between the the Conservative party and the Court. The action already agreed should dispose of Mr. Cameron's anxieties.

What about the Human Rights Act? Does it remain under threat?

The reforms proposed at Brighton, endorsed by the responsible Conservative ministers, and already partially implemented, completely undermine any case for repeal of the HRA. The purpose of the HRA - it is often forgotten - was to enhance subsidiarity  by enabling UK courts to determine liability under the Convention. It was explicitly designed to "bring rights home" by enabling UK judges to decide cases which would otherwise have had to be determined by judges from a variety of European states in Strasbourg. Its aim is precisely that espoused by the member states at Brighton: to make implementation of the Convention primarily the reponsibility of the individual states, thus relieving the pressure on the Court .

The Commission on a Bill of Rights was manifestly set up as a way of postponing the conflict between the two parties to the Coalition  - kicking the issue at least temporarily into the long grass. Its terms of reference exclude withdrawal from UK adherence to the European Human Rights Convention so in its forthcoming report its options are restricted to the following:

(a) reject the idea of a new bill of rights and retain the HRA  - possibly with  amendments to add new rights and safeguards  ("HRA plus").

(b) propose a bill of rights which incorporates the HRA.

(c) retain the HRA and recommend a bill of rights in addition - a recipe for chaos if ever there was one.

Constitutions and bills of rights in other sovereign states, including the USA, are characterised by their supreme authority as legislation, limiting the powers of the elected legislature. In the Human Rights Act we already have a bill of rights,  prescribing a comprehensive list of human rights intended to provide universal protection. The only significant difference from other bills of rights is  that it does not override or usurp parliament. It is a bill of rights which seems to fit the British temper and tradition.

Only a quarter of those who responded to the Commission's discussion paper circulated for  public consultation  in August 2011 favoured a British bill of rights while just under half opposed it. The Commission's second consultation, published in July 2012 and to which responses are requested by 30 September 2012 includes the question:"Whether or not you favour a UK bill of rights, do you think that the Human Rights Act ought to be retained or repealed?"

Yet among the members of the Commission, carefully selected to strike an equal balance between those known to support and those known to oppose the Human Rights Act, I have been told that three of the "antis" have argued that the United Kingdom should withdraw from the Council of Europe and thereby from the European Human Rights Convention.  This flatly contradicts the Prime Minister's own acknowledgement that our law must comply with the requirements of the Convention and of course with the Commission's terms of reference.

By contrast at least two of the "pros" on the Commission have said they will not compromise on insisting on the retention of the HRA.

Will there be a deadlock or a fudge? Better the former than the latter. Whatever the Commission recommends, repeal of the Human Rights Act would betray historic British values and make no practical sense.

This article will appear in a forthcoming issue of the New Law Journal

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