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

By Nigel Rodley

Editor’s note: This is the second 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.

‘Problems’ with the HRA

Within six years of its coming into force, the press and some ministers were beginning to complain at the way the HRA was operating. Three main high-profile issues apparently involving the HRA had led Prime Minister Blair to seek a review by the Lord Chancellor: first, a convicted killer, Anthony Rice, had been given early release from prison and gone on to murder another victim; second, the House of Lords had held the detention without trial of foreign suspected terrorists to be incompatible with the ECHR; and third, the government’s refusal to grant Afghan aircraft hijackers discretionary leave to enter the UK had been successfully challenged in the courts.

In fact, an inquiry by the Chief Inspector of Probation had already found that the release of Anthony Rice resulted mainly from poor judgement and inadequate research. The Lord Chancellor’s report confirmed that the Rice decision, to the extent that it was based at all on the HRA, was the result of a misperception of its demands.[1]

 As far as detention without trial of suspected terrorists was concerned, the case of A and others v The Home Secretary[2] found that the administrative detention was unlawfully based on discrimination on grounds of national origin, not that all such detention was automatically unlawful even in a (recognized) state of emergency. Moreover, since the detention was explicitly provided for by primary legislation and since, under the HRA, the courts may not override legislation, all the House of Lords could do – and did – was to issue a declaration of incompatibility, that is, that the measure violated the ECHR.  It was then up to Parliament to legislate to solve the problem, while the successful appellants remained detained. This resulted in the development of the system of control orders.

As to the Afghan hijackers, the court’s decision that they should not have been denied leave to enter by the Home Secretary ‘was not primarily based on HRA considerations’, though it did find the ‘open-ended discretion’ exercisable by the Home Secretary incompatible with the ECHR article 8 requirement that the decision be ‘lawful’.[3]  For Tony Blair, the decision to permit the appeal was ‘an abuse of common sense’, seemingly ignoring the fact that the men had already been fully dealt with by our criminal justice system (the men had been convicted and served some of their six-year sentence, before the conviction was quashed on other grounds) and apparently reckless of the moral and political implications of sending the men back to the tender mercies of the Taliban whose regime they had been fleeing.

Overall, it is probably the inability of successive governments to deport foreigners perceived to be in some way underserving of the right to stay in the UK, even those perceived as a threat to state security, that most rankles with politicians and the press.  This is at the heart of current Home Secretary Theresa May’s railing against the HRA  (and the ECHR) in the wake of being prevented by a ruling of the ECtHR from extraditing the egregious Abu Qatada to Jordan, where he potentially faced trial based on evidence extracted under torture.[4]

Still, some ordinary criminal justice cases are also seized on to attack the HRA and the judges interpreting it.  Thus, in 2011 the House of Lords held that placing a sex offender on the Sex Offenders Register for life, without possibility of review, was incompatible with ECHR article 8 (home and private life). According to Mrs May, the government was ‘appalled by that ruling’.

While particular decisions are invoked to justify the discontent with the HRA, or the ECHR, there are also underlying objections, some of which were in currency even before the adoption of the Act. The main ones are:

  1. That the ECHR per se limits the sovereignty of the United Kingdom or, at least, that the ECtHR’s espousal of an evolutionary approach to interpretation of the Convention has infringed UK sovereignty.
  1. The Act (and/or the ECHR) infringes Parliamentary sovereignty by putting (unelected) judges (foreign or home-grown) in a position to determine issues that are the prerogative of Parliament.

Limitation on UK sovereignty

On its face there can be little substance to the idea that a statute (the HRA) adopted by Parliament can offend UK sovereignty and the same would be true for a treaty duly ratified by the UK (the ECHR). Of course, any treaty is a limitation on sovereignty to the extent of the terms of the treaty – a limitation accepted by the parties to it.  It is true that, as noted earlier, the provisions of general human rights treaties may be particularly open-textured, but no-one is calling for the UK to denounce the International Covenant on Civil and Political Rights (ICCPR), many of whose provisions track those of the ECHR, with some going beyond the latter. It is tempting to speculate that this is because there is no binding enforcement of ICCPR. While the Human Rights Committee set up under the ICCPR reviews reports periodically submitted by the UK, the UK has not ratified the (first) Optional Protocol to the ICCPR, by which it would accept the right of individual petition to the Committee.

Rather the issue is who decides what the ‘correct’ interpretation of the ECHR is.  Under the ECHR, there is no argument: it is the European Court of Human Rights and, as befits a court, its decisions are binding. It is to the credit of the United Kingdom that it has never refused to implement a decision of the Court. (Even the unfortunate, long-standing non-implementation of Hirst v United Kingdom[5], which found the UK’s blanket ban on prisoners’ voting to violate ECHR Protocol 1, article 3, has been met more by prevarication than outright refusal.) Indeed, one of the key arguments of the proponents of incorporation of the ECHR into UK law (achieved via the HRA) was to ‘bring rights home’, that is, to put the issue in the hands of British judges, with a view to reducing the number of cases lost by the UK in Strasbourg.[6]

A variation of the theme, then, is that the ECtHR, when interpreting the Convention, is not doing what it is supposed to do.  According to critics it is should adopt an originalist or ‘founding fathers’ posture, by which the Convention should be interpreted in the light of what it was perceived to mean at the time of its adoption.  This is evidently at odds with the Court’s use of a ‘living instrument’ doctrine, which, for example, considers that ‘torture or inhuman or degrading treatment or punishment’ prohibited by ECHR article 3 must be understood according to modern evolving expectations of what constitutes such acts.[7]  This, for the critics, is ‘mission creep’. The necessary implication of this line of argument is that the UK would not have ratified the Convention until it was compliant with it and so any decision adverse to the UK would be the result of mission creep.

Limitation on Parliamentary sovereignty

It is hardly surprising that the House of Commons, the elected, more powerful legislative chamber tends to cling jealously to the notion that there should be no restriction on its power to legislate.  The ancient roots of the doctrine were only further nourished once the Commons became a truly democratic chamber reflecting the will of the whole adult population (except for convicted prisoners!).  It may be not just coincidental that the doctrine was stridently proclaimed by the proponents of the successful ‘Leave’ campaign for the 23 June 2016 Referendum.  The drumbeat was that our laws and practices should not have been given to, and should be taken back from, the ‘unelected’ officials in Brussels and judges in Luxembourg.

Sometimes, it is difficult to extricate the anti-EU discourse from anti-ECHR/HRA discourse.  The latter disapproves of ‘foreign’ judges telling the British grandmother how to suck human rights eggs.  Or, less protective of our judges, it complains that, under the Human Rights Act, British judges are dictating policy that should be left to Parliament.  The grievance is exacerbated by the fact that the HRA requires the courts to ‘take account’ of ECtHR case law.  And it is unmoved by the fact that the one thing the courts cannot do is strike down legislation.  Rather, the HRA chose the lesser of two options to challenge legislation.  It did not follow the Canadian model, whereby the Canadian Supreme Court, when applying the Canadian Charter of Rights and Freedoms can override legislation unless that legislation has been adopted explicitly ‘notwithstanding’ the Charter.  The HRA preferred to follow the New Zealand Bill of Rights model whereby there is a presumption of compatibility, but if that presumption cannot reasonably be sustained, then the legislation stands, with the courts merely able to pass the buck back to Parliament by declaring ‘incompatibility’.

So, we have the unashamedly partisan language of the 2015 Conservative manifesto commitment:

‘We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights. It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society. But 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. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.’

How the reversal of ‘mission creep’ from the ‘original’ ECHR is to be achieved is not explained, nor is the consequence of failure. As will be seen below, even withdrawal from the Convention was briefly on the agenda.

Anyway, this is a commitment that the government seems to wish to be seen to be trying to deliver on, now that it is no longer in coalition with a party implacably opposed to any weakening of the present system.[8]  So far, no official text has emerged to indicate what the government will propose, much less be able to get a majority for in the Lords ­or even the Commons. Various courses of action would be available, not all of which would necessarily be detrimental from a human rights protection perspective.

[1] Department of Constitutional Affairs, Review of the Implementation of the Human Rights Act p. 27 (‘DCA Review’).

[2] [2004] UKHL 56.

[3] DCA Review, p. 14, referring to R (S) v Home Secretary [2006] EWHC 1111.

[4] Othman (Abu Qatada) v United Kingdom (8139/09) ECtHR, Judgment (Chamber IV, 2012); this led Mrs May to seek assurances from Jordan that evidence obtained by torture would not be used in proceedings against Abu Qatada. In 2014, he was cleared in Jordanian courts of terrorism charges.

[5] Hirst v United Kingdom (74025/01), ECtHR (GC) Judgment 2005.

[6] The very title of the White Paper explaining the legislation to Parliament was entitled Rights Brought Home: The Human Rights Bill, CM3782, October 1997.

[7] The doctrine first appeared in the Tyrer case, in which the ECtHR found (the seemingly last vestige of) judicial corporal punishment in Europe, in the Isle of Man, violated the prohibition of degrading punishment under ECHR article 3: Tyrer v United Kingdom (5856/72), ECtHR, Judgment, 1978.

[8] Jessica Elgot, ‘UK Bill of Rights will not be Scrapped, Says Liz Truss’, The Guardian 21 August 2016:

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