Scrapping the Human Rights Act – the International Implications (Part I)

By Nigel Rodley

Editor’s note: This is the first of three posts in which Prof. Rodley examines the international implications associated with the British Government’s proposal to scrap the Human Rights Act (HRA). Part I provides background information relating to the establishment of the HRA. Part II addresses the ‘problems’ associated with the HRA, while part III looks at the international implications and possible scenarios.

In the year 2000, when the Human Rights Act 1998 (HRA or ‘the Act’) came into force, British judges were given the power to apply directly in cases before them the provisions of the European Convention on Human Rights (ECHR or ‘the Convention’).  Before that, the Convention was binding on the UK on the international plane alone, since in international law treaties (often called conventions) are legally binding agreements between the states that are parties to them but, unless incorporated by statute into national law, treaties are not automatically enforceable in the UK’s national courts.[1]

The adoption of the HRA has sometimes been considered a radical development, but that view is exaggerated.  Under already-existing doctrine our judges were able to take account of international treaty provisions when interpreting national law. And occasionally they did in the case of the ECHR.[2] The main difference with the HRA was that our courts now had to apply the ECHR as a direct basis for legal claims, except when it conflicted with existing legislation, in which case the court in question could not override the legislation; rather it would have to declare ‘incompatibility’ and, to avoid this as far as possible, it had to seek an interpretation of the legislation that would be reconcilable with the ECHR. Moreover, in interpreting the ECHR itself, it had to  ‘take account’ of the case law of the European Court of Human Rights (ECtHR or ‘Strasbourg Court’) established under the Convention.

Another important effect of the HRA was its provision for a two-year period of training of judges, the legal profession and others before the Act came into force.  This meant that ECHR-based litigation would become a natural part of litigation in UK courts, rather than just an add-on that a few knowledgeable lawyers might invoke in proceedings based on ordinary national law.  Indeed, the Act could now itself be a sufficient basis for bringing a claim before the courts.

 Meanwhile, since the mid-1970s the UK had brought into its foreign policy the promotion of human rights as a desirable goal.  First, it generally promoted the establishment of stronger international human rights standards and also the machinery to monitor the application of those standards.  Before long it was also promoting country-specific activity in such fora as the (former) United Nations Commission on Human Rights, and eventually in its bilateral relations with what the FCO’s current annual reports call ‘countries of concern’ (see below). The policy was consolidated in Robin Cook’s ‘ethical foreign policy’, articulated by the same administration that introduced the HRA.  Effectively there was a harnessing of domestic and foreign policy in terms of the international human rights project.

Over the years, successive governments came to chafe at some of the decisions the Strasbourg Court, of our own courts and even of some public authorities that sought to deflect from themselves blame for controversial decisions they took and place it instead on the HRA. This has led to the floating of proposals to amend the HRA and even to ‘scrap’ it, as foreseen in the election manifesto of the current governing party.

After a brief development of the backgrounds to the adoption of the HRA, the bringing of human rights into UK foreign policy and the nature of the ensuing discontent with the HRA – and the ECtHR – a range of possible outcomes of repeal of the Act will be identified.  From this it will be possible to consider the international implications for the foreign policy goals of the UK.

Background

In the second half of the 20th century several developments took place under UK governments of different political colours aimed at strengthening specific rights protections, such as non-discrimination on grounds of race or sex.[3] There were also a few initiatives that took in the broader rights dimension. The language related mainly to the idea of a (possibly entrenched) bill of rights.[4]  The idea of incorporating the ECHR would come later.

Thus, the 1979 Conservative Party manifesto for the election that brought Margaret Thatcher to power spoke vaguely of the idea of ‘a possible Bill of Rights’. Certainly, during the period of the Wilson and Callaghan governments individual Conservative legislators went as far as introducing (or seeking to introduce) draft bills of rights.  In April 1969, Viscount Lambton of the Conservatives sought and was refused permission to introduce a bill to preserve the rights of the individual. Two months later Liberal peer Lord Wade took a similar initiative that met the same fate.  In 1970 Conservative Lord Arran followed suit with a proposed Bill of Rights, but eventually withdrew it.  While these initiatives were aimed at the adoption of an entrenched set of rights, even an un-entrenched Charter of Human Rights suggested in 1975 by the Labour Party National Executive fared little better.  A year later, a proposal supported by leading Labour ministers advocated incorporation of the ECHR into national law.  Yet, despite this pedigree and the support of Home Secretary Roy Jenkins and Attorney General Sam Silkin, the initiative remained unrealized by the end of the Labour government.

 Although, as noted, a Bill of Rights was contemplated in the 1979 Conservative manifesto, the Thatcher government was resistant to any initiative, whether for a Bill of Rights or incorporation of the ECHR. It opposed in the Commons Lord Wade’s Bill of Rights that had eventually been passed by the Lords, and did the same in 1985 to Conservative Lord Broxbourne’s bill contemplating incorporation of the ECHR (that had also been successful in the Lords). All this, even though a year earlier 107 Conservative back-benchers had signed an Early Day Motion that called for incorporation of the ECHR.  Things seemed no better under the Conservative government led by John Major: two bills proposed by Liberal-Democrat peer Lord Lester of Herne Hill in 1995 and 1997 were successful in the Lords but did not progress in the Commons.

By the time of the 1997 election, Labour had now included a commitment to legislate to incorporate the ECHR into UK law.  It won the election and the new Blair government delivered on its commitment the following year.  It may not be not unduly cynical to assume that the rapid move ensured that civil service resistance could not be marshalled in time to prevent its happening – or that the government had not yet acquired the usual addiction to untrammelled power.[5]

Foreign policy

It was the impression of this observer of the UN Commission on Human Rights in the first half of the 1970s,[6] that the UK posture was essentially one of damage containment.  This was probably the result of traditional realpolitik and a lingering defensiveness about still recent colonial policy.  This changed in the latter half of the decade.  It is often assumed that the UK was following the policy of the new Jimmy Carter administration in the USA, which vocally proclaimed a commitment to the advancement of the International human rights project, including bringing its persuasive powers to bear on authoritarian states with which it had traditionally been more or less uncritically friendly.[7]

In fact, the change of UK policy was heralded in the 1974 Labour Party election manifesto, which pledged to ‘strengthen international organisations dedicated to the promotion of human rights, the rule of law, and the peaceful settlement of disputes.’

It should also be acknowledged that both the USA and the UK had already felt motivated to encourage progress in the procedures of the UN Commission on Human Rights as a result of the 1973 military coup in Chile.  Indeed, the UK and USA supported a resolution at the Commission in 1975 setting up an investigation into the human rights situation in Chile, with such resistance as there was coming from the Soviet Union and its allies.  This was not because the latter had any love for the Chilean Junta – on the contrary, they wanted a resolution that would roundly condemn it.  What they did not want was the establishment of an institutional accountability mechanism, in line with their traditional aversion to anything smacking of supra-national fact-finding, especially in the field of human rights.

The human rights policy survived the 1987 change of administration in Westminster. Indeed, the Conservative Party election manifesto that year included human rights among the issues about which Britain was ‘playing a major part on the international stage’. This was followed a decade later by the Blair government and its Election Manifesto commitment:

‘Labour wants Britain to be respected in the world for the integrity with which it conducts its foreign relations.  We will make the protection and promotion of human rights a central part of our foreign policy.  We will work for a permanent international criminal court to investigate genocide, war crimes and crimes against humanity.’

The alacrity with which the new government moved on the HRA was also visible on the international level.  In 1998 it issued the first of the Foreign and Commonwealth Office’s Annual Human Rights Reports.[8]  It also played a leading role among a group of ‘like-minded’ countries pressing at the Rome Conference for the adoption of a statute aimed at the creation of a strong international criminal court.[9]

Current government human rights policy is integral to the broader foreign policy and strategic goal of a ‘rules-based international order’. To take the most important of several pertinent quotations from the 2015 National Security Strategy and Strategic Defence and Security Review:

‘5.106 Our long-term security and prosperity depend on the rules-based international order upholding our values. Security and prosperity suffer when violations and abuses of human rights go unchecked. …

5.107 We will continue to promote universal human rights as an integral part of building prosperity and stability around the world. We will work with our partners to strengthen the promotion and protection of human rights, and hold to account those responsible for the worst violations and abuses. This is part of our work to promote the golden thread of democracy, rule of law, free media and open, accountable institutions.’

The commitment to human rights as a core goal of foreign policy could not be more authoritatively or securely fixed.

Tomorrow’s post looks at the ‘problems’ associated with the HRA. Thursday’s post will discuss the international implications associated with scrapping the HRA, and possible scenarios.

[1] Some (often called ‘monist’) states consider treaties to be automatically justiciable in their courts; others (often called ‘dualist’), like the UK, require an act of legislative incorporation before a treaty can become judicially enforceable.

[2] Anthony Lester cites several in Five Ideas to Fight For: How Our Freedom Is Under Threat and Why it Matters (One World Publications 2016) p. 32 (‘Lester, Five Ideas’).

[3] For example the Race Relations Act 1968 and the Sex Discrimination Act 1975.

[4] Entrenchment means that the legislation does not automatically yield to subsequent inconsistent legislation, which would be the normal consequence of incompatible statutory provisions; some sort of special process would be required to overcome the entrenched statute.

[5] Lester, Five Ideas, 25-26.

[6] From 1994 onwards, I regularly attended the annual sessions of the UN Commission on Human Rights as the Legal Adviser of Amnesty International.

[7] Already Congress had been legislating through amendments (promoted by Representative Donald Fraser) to the annual US Foreign Assistance Acts to require the USA to report on the human rights performance of recipients of US aid and restrict such aid in the worst cases.

[8] These reports, while not as extensive in their coverage of country situations as the annual US State department human rights reports, do focus on a number of ‘countries of concern’.

[9] I witnessed this personally when attending the Rome Conference, as Special rapporteur on the question of torture, on behalf of the annual meeting of UN Commission on Human Rights ‘special procedures’.


Disclaimer: The views expressed herein are the author(s) alone.

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