By Nigel Rodley
Editor’s note: This is the third 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.
- No weakening of normative protection
It would be possible to draft an ostensibly home grown Bill of Rights that contains at least all of the provisions of the European Convention on Human Rights. In February 2016, testifying before the Justice Sub-Committee of the House of Lords Select Committee on the European Union, then Justice Secretary Michael Gove seemed to be holding out this prospect, implying that the main purpose was to rehabilitate the project by making it more indigenous and less alien. Indeed, there would, one may always hope, be the option of expanding the reach of the human rights norms, for example, by adopting provisions from the ICCPR that have no counterpart in the ECHR. These include a free-standing right to non-discrimination and a provision providing for the rehabilitative goal of imprisonment.
- No weakening of institutional protection
Our judges would apply the Bill in the same way as the Act. If the Bill were to be ‘entrenched’, that is, given a quasi-constitutional status that would immunize it from amendment by subsequent ordinary legislation, then this would render the rights more secure than they are at present. Also since the Bill would be considered a wholly British document, judicial powers could even increase, for example, by permitting legislation incompatible with it to be overruled. This might well be a step too far for the critics who would fear either that Parliamentary sovereignty would be too limited or that it would lead to (further) politicization of judicial appointments. Perhaps the Canadian model of a ‘notwithstanding’ clause could be acceptable.
- Weakening of normative protection
It is unlikely that many proposals would be brought forward advocating express abandonment of existing ECHR norms. However, given the long-standing resentment of restrictions on deportation of foreigners, regardless of the fate that may await them at the other end, there could be an attempt to secure approval of a provision that would exclude the application of the human rights provisions to prospective deportations. There could also be a provision aiming to deny the vote to prisoners. Of course, this would bring the UK into direct conflict with its current obligations under the ECHR as interpreted by the ECtHR (see below).
- Weakening of institutional protection
At the national level, the repeal of the HRA would automatically mean removal of the explicit obligation to take account of the case law of the ECtHR. It may be expected that the replacement Bill of Rights would have no such requirement. However, given the traditional doctrine according to which the courts can interpret existing legislation in a way that will avoid placing the UK in violation of its international legal obligations, and the now acquired judicial familiarity with ECHR doctrine, it would be unlikely that the courts would fail to take account of ECtHR case law, at least when pleaded. This, in turn, would be frequent because of the parallel expertise in the subject acquired by the whole legal profession.
- Withdrawal from the ECHR
Whatever replaces the HRA and whatever effects the replacement may have on what the British courts can decide on human rights grounds, the UK will remain bound under international law to comply with the ECHR and the decisions of the ECtHR – unless, of course, it also withdraws from the Convention. Short of that, there will merely be a reversion to the pre-HRA situation, in which many more cases went to – and were lost by – the UK than with the present dispensation. It may be recalled that avoidance of this was at the heart of the argument incorporation of the ECHR into UK law.
A more helpful solution for the critics would be outright withdrawal from the ECHR. This proposal has been mooted by Conservative leaders. As recently as 25 April 2016, Home Secretary Theresa May strongly advocated this course. Incongruously, she was arguing the point in a speech in support of the Remain (in the EU) choice for the 23 June Referendum. The problem there was that, if the UK had voted to remain in the EU, it might anyway have still been indirectly bound by the ECHR, by virtue of the EU Charter of Rights; and the looming adherence of the EU itself to the ECHR would have reinforced this obstacle to the critics’ project. In any event, now as Prime Minister, Theresa May has ruled out withdrawal from the Convention during the life of the current Parliament, in other words, for the rest of the decade.
Undesirable as it would be symbolically, repeal of the HRA and replacing it with equally or more protective Bill of Rights might not of itself have significant international legal implications. Even if the explicit link to the case law of the ECtHR were to be severed, as indicated, this would merely be a reversion to the pre-2000 position. It would probably lead to some criticism of retrenchment from making international human rights law more effective, but the government might perceive it as sustainable.
Any weakening of the normative protection offered by the ECHR, as interpreted by the ECtHR, certainly would undermine our moral-political authority to call others into line on issues they find onerous. It is hard to counter the argument, frequently enough deployed already, that ‘if the US or the UK or Sweden or (fill in the blank) do it, why shouldn’t we?’ The situation is already corrosive enough of our credibility, as long as Hirst remains unimplemented. If a new Bill of Rights were to go as far as to exclude deportation cases from the scope of the Bill, it would be paving the way for a confrontation with the European Court of Human Rights that could be politically volatile, perhaps then triggering a recrudescence of calls to withdraw from the Convention.
As far as the international institutional protection of human rights is concerned, withdrawal from the ECHR, were it to re-emerge on the political agenda, would cause havoc to the foreign policy pursued by successive governments for more than four decades. First, it has for at least a quarter of a century been a political condition for membership of the Council of Europe to be a party to the ECHR. The Council of Europe is the post-war institutional architecture aimed at ending forever a slide back into the disaster of the two (European-generated) World Wars. At first, only Western European states were members, because until the end of the 1980s the authoritarian/totalitarian states of Eastern Europe precisely did not have the human rights- and rule-of-law-based systems that were consistent with the Council’s vocation. After the implosion of the Soviet Union and the liberation of Eastern Europe from Soviet domination in the years following 1989, the Russian Federation and most of its client states from the region joined the Council of Europe, after accepting the condition that they become party to the ECHR. If the UK were to withdraw from the ECHR the Council would have no option but to expel it from membership. That alone should be enough to make withdrawal unthinkable.
As for the broader international level, it will be an insurmountable challenge to argue that the credibility UK’s commitment to the protection of human rights remains intact. That commitment included from the beginning the advancement of institutions of international protection of human rights. It seems even less consistent with the core current UK goal of promoting a ‘rules-based international order’. If the rules merely mean what the UK understands them to be, then every other country will be able to adopt the same posture. Rules subject to auto-interpretation are a poor guide to predictable, consistent behaviour, which is the only point of having them.
So, while waiting to learn what the government’s proposals for a UK Bill of Rights will turn out to contain, we can perhaps breathe a cautious sigh of relief that, into the medium term, those subject to the UK’s jurisdiction will continue to have the safety net of Convention protection. It must then be hoped that the Bill will not contain the seeds of a future calling into question of our commitment to the Convention.
 Revised transcript of evidence, hearing, 2 February 2016.
 See ICCPR article 26; while the ECHR prevents discrimination on various grounds in the enjoyment of Convention rights, it does not exclude discrimination on other ordinary legal rights at the national level, unless Protocol 12 has been ratified. The UK has expressed an intention not to ratify it.
 ICCPR Article 10 (3) provides that the ‘essential aim’ of penitentiary treatment of prisoners ‘shall be their reformation and social rehabilitation’.
 My take here assumes that the result of the previous UK attempt to defang the Court, namely the reification of the unfortunate doctrine of a national ‘margin of appreciation’ in the interpretation of the Convention (via Protocol 15), will not cause the Court to retreat on long-established practice.
 Anushka Asthana & Rowena Mason, ‘UK must leave European convention on human rights, says Theresa May’, The Guardian 25 April 2016: http://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum.
 See the House of Lords Justice Sub-Committee of the Select Committee on the European Union: The UK, the EU and a British Bill of Rights, 9 May 2016.
 Charlie Peat, ‘Theresa May Ditches Her Plans to Take Britain Out of European Convention on Human Rights’, The Express, 1 July 2016: http://www.express.co.uk/news/uk/685158/Theresa-May-ditches-plans-Britain-out-European-Convention-Human-Rights-Tory.
Disclaimer: The views expressed herein are the author(s) alone.