Not for the first time, the Conservative party, at their party conference in Birmingham this year, threatened to take the UK out of the European Convention on Human Rights. The policy announced was to repeal the Human Rights Act of 1999, and to replace it with a new Bill of Rights. The text of the ECHR would remain UK legislation, and a re-enacted Convention would be put in place to ‘clarify’ some of the existing rights, but it would remove many of the protections that the HRA currently provides .
Britain has a long history of protecting the Human Rights of its citizens and standing up for those values. The Magna Carta in 1215, the Bill of Rights and the Claim of Rights in 1889, and over the centuries through common law tradition, have given the United Kingdom a great reputation as being at the forefront of Human Rights and civil protections. The Second World War and the rise of Communism through Central and Eastern Europe were two of the main factors that led to the creation and implementation of the European Convention on Human Rights (ECHR) . Leaning heavily on the Universal Declaration of Human Rights, the ECHR, signed in Rome aimed to protect the Human Rights and fundamental freedoms in Europe. The ECHR is an obligation binding in international law. In line with its progressive reputation the United Kingdom was the first State to ratify the convention.
The ECHR established, amongst other things, the European Court of Human Rights (ECtHR). The ECtHR was created with the aim to allow any person who feels their rights have been violated by a State party to have their grievance heard in Court. It was written into the Convention that the decisions made there, if adverse in their findings, were to become binding on the State, creating an obligation to remove the violation to Human Rights at the root.
The Labour government introduced the Human Rights Act (HRA) in 1999. The Act gave effect to the ECHR in domestic legislation. The HRA did not give us the rights and freedoms to which we had been entitled to, the HRA enabled us to enforce those rights and freedoms in Britain, in domestic Courts, before domestic judges, magistrates and juries.
What the Conservatives aim to do.
The policy announcement by David Cameron focused on the ‘Mission Creep’ element of the European Court on Human Rights. ‘Mission Creep’ is the general concept of an ‘expansion of a project or operation beyond its original goals.’ The Conservatives state that the ECtHR has used the living instrument doctrine to expand the ECHR into new areas, and “certainly beyond what the framers of the Convention had in mind when they signed up to it.” Taken from Prime Minister David Cameron’s speech at the party conference, he states that through the Mission Creep prerogative, the ECtHR is expanding into areas that are beyond its remit, his examples included;
• The current dispute between the ECtHR and the UK over voting rights for prisoners. They say that this issue was originally debated at the time of the ECHRs birth and that it was specifically excluded from the text.
• The abolition of whole life sentences. They say that Article 3 was originally designed to prohibit torture, and inhuman and degrading treatment or punishment , and that it would not have been in the minds of the creators to exclude whole life sentences.
• UK Courts are to take into account the ruling of the ECtHR when they are interpreting Convention rights . The Conservatives contend that this means Strasbourg jurisprudence is often being applied to UK law, “meaning the application of this doctrine has led judges to question whether the provisions of the legislation and decisions of public authorities are proportionate to their objective, which can lead to political evaluation.”
• The UK is to read and give effect to legislation in a way that is compatible with Convention rights. The Conservatives suggest that this may lead to statutory implementation that is inconsistent with Parliament’s intention, and,
• Requiring the UK government to allow prisoners the right to go through artificial insemination with their partners. The Conservatives reject allowing prisoners this right which has been upheld by the ECtHR under Article 8. Notably the Conservatives did not provide any reason for objecting to this allowance beyond the fact that it is aimed at ‘undesirables’
The Conservative plan for change is aimed, amongst other concerns, at protecting Parliamentary Sovereignty and the concept of the Separation of Powers. It seems that Parliament wants to distance itself from the ECHR providing universal rules being used in cases that they disagree with. Considering Theresa May spent years and millions of pounds deporting Abu Qatada to Jordan, blocked by the ECtHR on grounds that it would be against his Human Rights to send him to a place where he would not receive a fair trial, their concerns, on the face of it, seem to be valid.
The plans to change the perceived encroachment by the ECHR and the ECtHR from their policy announcement include that;
• The European Court would no longer be binding over the UK Supreme Court. This would mean that adverse rulings from the ECtHR would be merely advisory, and would have no legal effect in the UK without the consent of Parliament.
• There will be a break to the formal link between the British Courts and the ECtHR.
• There will be a more precise definition of ‘degrading treatment or punishment’ given under Article 3, which the Conservatives argue has been given an excessively wide meaning, and,
• The Convention rights will be clarified to reflect a ‘proper balance between rights and responsibilities’. The example being in relation to deportation. The ECtHR states that if there is a real risk of a person being treated in a way contrary to these rights in the destination country, there is a bar to them being deported there. The Conservatives say that this gives them, in substance, an absolute right to stay.
Is a withdrawal possible?
The Conservative policy to repeal the Human Rights Act seems to be based on the campaign of misinformation, cultivated from the print media, voters and backbenchers on the fringes of the far right. The ECHR however, which is only given effect in the United Kingdom by the HRA, does not make a clean break easy.
Article 46 of the ECHR states that member States “undertake to abide by the final judgment of the Court in any case to which they are parties”. Member States are currently bound by Court rulings via the ECHR itself, and not through the HRA as claimed. Article 46 also requires the consent of all 47 member States to alter the commitment . Further, Article 58 states that countries will remain bound by existing adverse rulings. This puts paid to the argument that the HRA is the instrument that will lead to the overturn on the blanket ban on prisoners voting rights. The only way out of these particular provisions would be to opt out of the whole Convention.
Further from the wording of the ECHR itself, there are wider concerns that would need to be considered and re-legislated, if the UK was to withdraw itself from the HRA or the ECHR. The wider considerations that need to be considered include;
• A withdrawal from the Convention could place Britain in breach of its international obligations in the 1998 Good Friday agreement, which helped to bring peace to Northern Ireland. The agreement, which was approved by referendums on both sides of the Irish border and lodged at the UN, said the two communities in Northern Ireland would be protected by safeguards that include “the European Convention on Human Rights and any bill of rights for Northern Ireland supplementing it, which neither the assembly nor public bodies can infringe”.
• People in Britain would lose the right to take the British government to the Human Rights Court in Strasbourg, a right they have enjoyed since 1966 . Citizens of the UK would lose the right to take any offending bodies of the UK to the ECtHR in Strasbourg if its bodies infringed against the Convention rights.
• The UK armed forces would cease to be subject to Human Rights legislation overseas, this would remove the armed forces obligations to abide by the HRA when operating militarily in conflict zones abroad. This, to the extent not covered by other Conventions , would mean that the armed forces could potentially not be subject to Article 5, the right to liberty, Article 6, the right to a fair trial, Article 8, the right to a private and family life, and Article 14, freedom from discrimination.
The effect on the United Kingdom, will not only be the removal of universal rights, and the re-introduction of qualified, Conservative aligned rights, but it will have a much wider effect on what we enjoy as a western, progressive society.
Counter claims & cases
The effect of the European Convention on Human Rights, as enforced by the European Court on Human Rights, has impacted the United Kingdom in a variety of ways over the last half a century. The current trend to blame the ECtHR for ‘forcing’ the UK into decisions that it ‘fundamentally’ disagrees with,’ has to be looked at in reference to the decisions that have had a positive and life changing impact for the better.
It would seem a heavy price to pay to leave the protection of the Human Rights Act and the ECHR, because of the few niggling points given by Prime Minister in his party policy announcement. Consider the following;
• Ireland v UK . ECHR ruled that the British army’s use of five techniques on detainees amounted to inhuman and degrading treatment. The five techniques were, 1. Wall-standing, 2. Hooding, 3. Subjection to noise, 4. Sleep deprivation and, 5. Food and drink deprivation. These were subsequently outlawed in the UK for extracting confessions.
• Dudgeon v UK – Court held that criminalisation of homosexuality violated the right to respect for family life. Homosexuality was subsequently de-penalised in the UK.
• Al Jedda and Al Skeini v UK . ECHR said in 2011 those detained in Iraq by the UK were subject to its jurisdiction.
• Smith and others v Ministry of Defence. UK Supreme Court decision found that, through Human Rights legislation, the army has a duty of care to soldiers killed in combat. Injury claims, including PTSD, could now be claimed by military personnel.
• Lustig-pretan & Beckett v UK Court held that criminalisation of homosexuals serving in the armed forces was a violation of Article 8. In January 2000, Defence Secretary announced that sexual orientation would no longer be a bar to service in the armed forces.
• Z v UK failure of social services to protect children subjected to abuse by their parents was a violation of Article 3. This led to a number of changes to procedure in social services and registering of ‘at risk children’.
• Paton v Poole Council The Court held that putting a family under surveillance was a breach of their right to a private and family life.
• Hirst v UK. Granted some prisoners voting rights.
• S & Marper v UK Court held that police refusal to delete DNA samples and profiles and fingerprints of innocent children and adults was a breach of Article 8. The Government introduced the Protection of Freedom Act 2013 and over 1 million sample and profiles were deleted.
• Gillian & Quinton v UK – Strasbourg ruled that stop and search powers without suspicion were discriminatory and unlawful. The coalition then repealed the power.
• Financial Times v UK – Court held that forced disclosure of journalistic sources would have a serious chilling effect on press freedom and that constituted a disproportionate interference with the Article 10 right to freedom of expression.
Considering the above cases and that last year the European Court in Strasbourg dealt with 1,652 applications against the UK. Of those, 98.6% were declared inadmissible or struck out. In only eight cases or 0.4%, did the Court find at least one violation of Convention rights. This shows that the rights employed in the UK have struck a good balance between the States legislative desires and ECtHR decisions. The ECtHR is not arbitrarily victimising parliamentary intentions, but upholding a balance.
There has been an outcry from nearly every sector of society at the proposed plans. The media, politicians, charities, welfare groups and the public, have hit out against the possible repeal of the HRA and the threats of exiting the European Convention on Human Rights.
The general consensus from the media is summed up by the Guardians Joshua Rozenblatt, who stated that “The Conservative plans are legally coherent, but they would take the UK back half a century“ .
Dominic Greve, the former Attorney General states that repealing the ECHR is “unworkable and will damage the UK’s international reputation.” … It’s exasperating to hear the prime minister vow to tear up the Human Rights Act again – so he can draft ‘his own’. Human Rights are not in the gift of politicians to give. They must not be made a political plaything to be bestowed or scrapped on a whim. It’s time politicians accepted that they too have to follow the rules and that those rules include the civilising Human Rights standards Churchill championed.” Kenneth Clarke the former justice secretary stated that “governments can’t just pick and choose which ECHR judgments to follow” and warned that making rulings of the ECtHR no longer enforceable mean that future governments could be led to make arbitrary decisions.
Human Rights campaigners including, Amnesty UK’s campaigns director, Tim Hancock, stated “Theresa May made much in her speech about how we must stand up and fight for Human Rights abroad, it makes absolutely no sense to denigrate those same rights at home.” Whilst director of the civil rights organisation Liberty, Shami Chakrabarti, stated: “Shame on the prime minister for citing Churchill, while promising to trash his legacy. The Convention protects both prisoners of war and soldiers sent off to fight and die with inadequate equipment. But the prime minister believes there is no place for Human Rights in Helmand – on that, he and Isis agree.”
In conclusion, the European Convention on Human Rights and the Human Rights Act which enshrined it, have strengthened the protections for the public against possible infractions by states and their bodies. Yes, they have expended beyond their original wording and stretched into areas of the public that may not have been envisaged in 1950, but the world has progressed. Europe and the United Kingdom face different struggles, threats and pressures than were faced in the aftermath of the Second World War. The UK has different priorities, different social contexts and different challenges. The world is a more social and connected place. The advent of the computer age, social media, financial crisis and public pressure has made the European and local communities more accountable now more than any other time in human history. The HRA and the ECHR may not be in the favour of everybody, but everybody benefits in some form.
In final words, Lord Bingham sums the HRA. “The Human Rights Act gets the balance right between protecting our rights and preserving Parliamentary sovereignty. Parliament isn’t right 100% of the time, as ID cards, control orders and DNA databases remind us. If we give our Parliament the right to a “pick and mix” approach to Human Rights standards, we send the message that that is also OK for the Duma. If his rule of law is tempered by the popular majority, it becomes no real rule at all. Talk about this kind of British Bill of Rights might be good politics, but it’s unnecessary and dangerous for our constitution.”
Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, and unnecessary? Are any them un-British? There may be those who would like to live in a country where these rights are not protected, but I am not of their number. Human Rights are not, however, protected for the likes of people like me – or most of you. They are protected for the benefit above all of society’s outcasts, those who need legal protection because they have no other voice – the prisoners, the mentally ill, the gipsies, the homosexuals, the immigrants, the asylum-seekers, those who are at any time the subject of public obloquy… The well-to-do can generally look after themselves. The truly vulnerable cannot. The rights protected by the Convention and the [HRA] deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.”