In yesterday’s Queen’s speech, the UK Government has (again) committed to publish proposals on a British Bill of Rights during the course of the next Parliamentary year. The Queen said in Parliament that:
Proposals will be brought forward for a British Bill of Rights.
Early commentary has interpreted the repetition of a commitment made in last year’s Queen’s Speech as further evidence that the Bill of Rights project has stalled as a result of disagreement among senior Government ministers about whether or not the UK should leave the European Convention on Human Rights (the “ECHR“).
However, the briefing notes accompanying the Queen’s speech, taken together with recent statements by the Attorney General, Jeremy Wright MP, and the Secretary of State for Justice, Michael Gove MP, shed some light on the Government’s current thinking.
This blog analyses the Government’s recent statements on possible reforms to the UK’s human rights framework and, in order to inform the debate, attempts to de-mystify the current legal position.
THE PROPOSALS FOR A NEW BRITISH BILL OF RIGHTS
The Conservative Party’s long-repeated intention to reform the Human Rights Act 1998 (the “HRA“) is well-documented. Both the Conservatives’ 2010 and 2015 manifestos undertook to replace the HRA with a British Bill of Rights. The detail of a possible reform in this area has changed over time and is highly contested.
The briefing notes accompanying the Queen’s speech state, rather ambiguously, that the purpose of the Bill would be to “reform the UK human rights framework” and to “better protect against abuse of the system and misuse of human rights laws and would restore common sense to their application“. The briefing notes also confirm that the rights “would be based on those set out in the European Convention on Human Rights, while also taking into account our common law tradition“. This statement is contrary to recent statements by the Home Secretary, Theresa May, as to which see our recent blog post here.
When giving evidence to the House of Lords EU Select Committee on 2 February 2016, Mr Gove explained the need for the proposals. He stated that the reasons for the reform were that “human rights… have a bad name in the public square” and that they had become associated with “unmeritorious individuals pursuing through the courts claims that do not command public support or sympathy“. He also indicated that human rights had become a “foreign intervention” and that part of the purpose of the British Bill of Rights “is to affirm the fact that things like a prohibition on torture or a right to due process and an appropriate trial before a properly constituted tribunal… are fundamental British rights“.
As a result of Mr Gove’s evidence before it, the House of Lords EU Select Committee’s report, published on 26 April 2016, concluded that the principal motive for a British Bill of Rights was to “restore national faith in human rights, and to give human rights greater national identity, rather than to enhance human rights protection in the UK“, a proposal that the Committee considered “far less ambitious” than the one outlined in the 2015 Conservative manifesto. This led to the Committee recommending that, if it was correct that the Bill of Rights was not intended to change significantly the protection of human rights in the UK, the Government should “give careful thought before proceeding with this policy“, which would be a “constitutional change of the greatest significance“.
Mr Wright, in a statement made to the House of Commons on 26 April 2016, provided further detail on the Government’s thinking. He indicated that the Government wished, by introducing a British Bill of Rights, to address “the expansionist approach to human rights by the Strasbourg court and under the Human Rights Act“. He also said that, although they seek to achieve these reforms while remaining a member of the ECHR, “we will not stay at any cost… if we cannot achieve a satisfactory settlement within the ECHR, we may have no option but to consider withdrawal“.
Most recently, on 17 May 2016, Mr Gove wrote to the Chair of the Joint Committee on Human Rights, Harriet Harman MP, stating that:
The government’s position is clear and has not changed. The Bill of Rights will remain faithful to the principles in the ECHR. Whilst we cannot rule out withdrawal from the ECHR forever, our proposals for a Bill of Rights do not involve leaving.
It is not clear whether, before the Government publishes a final proposal, these statements should be taken as a coherent indication of Government policy. However, in the light of the conclusions of the House of Lords EU Select Committee published on 26 April, the Government’s decision to include reference to the proposals for a British Bill of Rights in today’s Queen’s speech is a clear indication that it intends at least to publish its proposals shortly and put it to a public consultation.
So, assuming that the UK will remain a signatory of the ECHR, at least for the time being, how could the proposals to change the current human rights framework in the UK?
THE PROTECTION OF HUMAN RIGHTS IN THE UK: THE CURRENT POSITION
What is the ECHR and what does it do?
Signed in 1950, the ECHR is the primary source of an internationally recognised standard of legally-enforceable human rights among the 47 signatory states of the Council of Europe, of which the UK was a founding member. All signatory states are bound by international law to respect and uphold the rights provided for in the ECHR, as interpreted and enforced by the European Court of Human rights in Strasbourg. Effectively, each signatory state has agreed to be bound by an international standard of human rights protection, against which its own domestic mechanisms for protection are judged.
The Strasbourg court is not a court of appeal in relation to the UK courts, nor can it quash or revise decisions of the UK courts. However, an alleged victim, who has exhausted their domestic remedies, can make an application against the UK in the Strasbourg court for breach of the ECHR. The Strasbourg court can award damages against the UK and/or order the UK to rectify the breach. The Court’s judgment is binding against the UK as a matter of international law – although not universally honoured by signatories. It has no direct, binding domestic legal effect.
The UK cannot be forced to change its laws by the Strasbourg Court or the Council of Europe. However, no doing so in the face of an adverse decision by the Court means that the UK would remain in breach of its international legal obligations under the ECHR and liable to further claims by other victims.
As long as the UK remains a signatory to the ECHR, none of the above will change without agreement of the Council of Europe and the other signatory states.
Even before the HRA provided an effective domestic remedy in the national courts, the ECHR was frequently invoked in proceedings before the UK courts and the courts became increasingly willing to have regard to the (as yet) unincorporated ECHR and the Strasbourg Court’s case law as a source of principles or standards of public policy. Therefore, if the Government were to propose a return to the pre-HRA position, this would most likely not stop the UK courts referring to ECHR jurisprudence when domestic law is ambiguous or underdeveloped. It would, however, remove the UK courts’ power and responsibility to uphold the ECHR rights themselves, thereby preventing the UK courts from contributing to the ECHR case law by interpreting and applying the ECHR directly in the UK context.
What is the Human Rights Act and how does it protect human rights in the UK?
Since the HRA came into force in 2000, all public bodies in the UK are required, as a matter of UK law, to act in a way that is compatible with the rights set out in the ECHR. Alleged victims can bring a claim for breach of their ECHR rights against a public body in the UK courts to be decided by UK judges. Under section 3 HRA, UK judges must interpret all legislation, so far as is possible, in a way that is compatible with the ECHR, which is incorporated into UK law by section 1 HRA. In doing so, the UK courts are required to “take account of” the judgments of the Strasbourg court when interpreting the ECHR rights, but need not always follow them (section 2 HRA).
One criticism levelled at the UK courts by those who are in favour of repealing the HRA is that they have tended to slavishly follow the Strasbourg Court in a way that is not consistent with Parliament’s intention. In R (Animal Defenders) v Secretary of State for Culture, Media and Sport  1 AC 1312, Lord Bingham recognised that the HRA gave domestic effect to the ECHR rights and requires the courts to take into account any Strasbourg decision, but “not to follow it as a strictly binding precedent“, although he recognised that “in the absence of special circumstances our courts should follow any clear and constant jurisprudence of the Strasbourg court, recognising that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court“. However, Lord Bingham also recognised that, where the judgment of Parliament appears to contradict a decision of the Strasbourg court, the judgment of Parliament should be given great weight and “should not be lightly overridden“: “A general rule means that a line must be drawn, and it is for Parliament to decide where“.
Where the UK courts do depart from clear and consistent jurisprudence of the Strasbourg Court, the unsuccessful claimant is entitled to seek a remedy from the Strasbourg court directly. This can result in a dialogue between the UK courts and the Strasbourg Court as to the correct scope of the ECHR right in question (for example, see Manchester City Council v Pinnock  UKSC 45).
Where the court cannot interpret an Act of Parliament in a way that is compatible with the ECHR, it can issue a declaration of incompatibility under section 4 HRA. This declaration has no legal effect on the Act of Parliament but is a political mechanism that highlights the court’s decision to the UK Government and/or Parliament, who must then decide how to act. This mechanism is intended to uphold the sovereignty of the UK Parliament.
The EU factor: what is the EU Charter of Fundamental Rights?
The EU is a separate organisation from the Council of Europe, established under different international agreements and for different purposes. However, the two institutions are closely linked; no country has ever joined the EU without first belonging to the Council of Europe.
The EU Charter of Fundamental Rights, which incorporates and builds on the rights set out in the ECHR, has the same legal value as the EU Treaties, thereby forming part of EU law. The Charter stipulates that when it contains rights that stem from the ECHR, the Charter adopts the meaning and scope given to such rights by the decisions of the Strasbourg Court.
As a result, the rights set out in the Charter, including the ECHR rights, are treated as general principles of EU law and are binding on all EU institutions when they exercise their functions under the EU Treaties and also on all EU member states, including (so long as it remains a member state) the UK, when they are implementing EU law into its national law. This happens in limited circumstances, such as when the member states are implementing an EU Directive.
POSSIBLE CHANGES UNDER A NEW BRITISH BILL OF RIGHTS
When it was put to him that the UK courts do not follow Strasbourg judgments as if it were a court of appeal, Mr Gove stated in his evidence to the EU Select Committee that “we cannot necessarily rely on a future court or future judges to take this approach“.
It is possible that the proposed Bill of Rights could require the UK courts to give particular weight to the judgment of Parliament when considering whether an Act of Parliament is incompatible with the ECHR, thereby giving a statutory footing to this principle. However, as explained above, the courts already do this, so such a change is unlikely to make much practical difference.
Mr Gove also considered whether the proposed reforms could put the UK in breach of its legal obligations under the ECHR. He stated that “it could be a problem” but that the Government was “not planning to derogate absolutely from any of the rights [in the ECHR]. At the moment we envisage that all the rights contained within the Convention will be affirmed in any British Bill of Rights, but where rights are subject to potential qualification, we may emphasise the importance of one right over another“.
In the event that the Bill of Rights did derogate from the rights protected in the ECHR, as interpreted by the Strasbourg Court, this could clearly result in more applications against the UK in Strasbourg. However, perhaps more significantly, it could also result in more challenges under the EU Charter of Fundamental Rights in the UK courts. The power of the UK courts when applying the EU Charter to disapply a provision of national legislation (even an Act of Parliament) that is inconsistent with the EU Charter is a more effective remedy than a declaration of incompatibility under section 4 HRA. Such challenges could also result in more references by the UK courts to the Court of Justice of the European Union for authoritative interpretations of EU law, which, unlike decisions of the Strasbourg Court, the UK courts would be bound to follow.
Therefore, if the UK votes to remain in the EU on 23 June 2016, introducing a British Bill of Rights with the intention of giving human rights a greater national identity but in a manner that diminishes protection of the ECHR in the national courts could lead to more challenges to UK legislation in the EU courts on the grounds that it breaches international human rights standards.
Reform to the current framework also raises questions about the devolution settlement within the UK. There are already signs of the difficult political path ahead for any successful adoption of a new British Bill of Rights. The Irish Government wrote to Mr Gove on 3 February 2016 emphasising that, under the Good Friday Agreement, the ECHR must be incorporated into the law of Northern Ireland, including the right to direct access to the courts, remedies for breach of the ECHR and the power for the courts to overrule legislation enacted by the Northern Irish Assembly on the basis that it is incompatible with the ECHR. The Scottish Government has also publicly stated that it would resist reforms to the Scotland Act that would result in the ECHR not being incorporated into Scottish law. As the EU Select Committee pointed out, if such resistance proves insurmountable, it could result in the British Bill of Rights ending up as an “English Bill of Rights“.
The Queen’s speech does not give much away in terms of the substantive content of the Government’s proposal for a new British Bill of Rights. However, given that the Government’s plans are so controversial, with both sides of the debate passionate and vocal in their belief that the other side is dangerously wrong, it is very unlikely that any conceivable proposal could satisfy everyone. In fact, it is more likely that the Government’s current trajectory, namely to remain within the ECHR but tinker around the edges of the current domestic framework for human rights, could end up satisfying no one.