The stage is set for the Euro-drama of our time. We know that giving effect to the UK's vote for Brexit could require as many as four sets of distinct but closely linked negotiations, or...01 August 2016
Separating myth from manifesto: The General Election and the Future of UK Human Rights Law
In October 2014, the Conservative Party published a paper (the "Strategy Paper") setting out its future vision for a British Bill of Rights. Their proposals included some radical reforms, including repealing the Human Rights Act 1998 ("HRA") and possibly withdrawing from the European Convention on Human Rights (the "Convention").
The position set out in the Conservative Manifesto appears to have retrenched slightly from the position in the party's Strategy Paper, in that it does not propose that judgments of the European Court of Human Rights ("ECtHR") should not be legally binding, or that Strasbourg case law should no longer create legal precedent. Nor does the manifesto raise the possibility of the UK ceasing to be a party to the Convention. Rather, the manifesto repeats the party's 2010 pledge to repeal the HRA and in its place introduce a British Bill of Rights, which (it claims) will "break the formal link between British courts and the ECtHR."
It is not at all clear what a "British" Bill of Rights would look like but some clues can be drawn from the Strategy Paper. That paper set out the Conservatives' view on how the HRA has facilitated "mission creep" by the ECtHR into areas that ought properly to have been determined by a sovereign UK Parliament. As well as concerns around the role of Strasbourg in interpreting human rights law, the Strategy Paper also makes it clear that the Conservatives have concerns as to the actual scope of human rights protection and that the party would seek to narrow this in future. Suggested restrictions on human rights include: (i) interpreting the wording of fundamental rights more restrictively; (ii) restricting reliance on human rights where a person has behaved irresponsibly; and (iii) limiting the availability of human rights protection to "the most serious cases".
If a new British Bill of Rights reflected these principles, it could potentially constitute an express refusal to comply with the Convention in certain circumstances. Therefore, although the rhetoric of the Conservative manifesto appears milder than the Strategy Paper, the practical upshot may be the same. This is borne out by the comments of Lord Faulks in the recent JUSTICE debate in which he made it clear that the Conservatives were concerned that the HRA had in effect "subcontracted" human rights decision making to Strasbourg and that the possibility of withdrawing from the Convention had not been ruled out.
Alternatively, if a British Bill of Rights were less restrictive, the UK could remain a signatory to the Convention while not being expressly bound by Strasbourg case law. In that scenario, domestic judges would "mirror" the Strasbourg approach by ensuring the same level of protection to claimants without being bound by ECtHR decisions. In Lord Bingham's words (in the case of Ullah) the duty of the Court is to keep pace with Strasbourg jurisprudence; "no more, but certainly no less." Under this model, Strasbourg decisions would no longer be authoritative but merely persuasive.
It is worth noting that the Conservatives promised to replace the HRA with a British Bill of Rights in their 2010 Manifesto but could not deliver on this promise in a Coalition Government given the opposition of the Liberal Democrats to the Act's repeal. If the Conservatives do not win an overall majority in the forthcoming election then their proposed reforms may again be kicked into the long-grass depending on the stance of any coalition partners.
By contrast, the Labour party manifesto promises to "protect" the HRA, stating that thanks to the Act "some of our most vulnerable citizens, including disabled people and victims of crime have been given a powerful means of redress". It also states that Labour is committed to "reforming, rather than walking away from, the European Court of Human Rights."
Andy Slaughter, a Shadow Justice Minister recently said; "To most lawyers, it’s risible the way that this Government puts its case for having a British Bill of Rights at the expense of living within the European Convention of Human Rights alongside 46 other countries." Similarly Ed Miliband has pledged to "passionately defend our membership of the European Convention on Human Rights."
The Shadow Justice Secretary, Sadiq Khan reiterated support for the HRA and the UK's membership of the Convention in June last year. However, Khan said that Labour acknowledged the problems caused by British courts treating ECtHR rulings as binding. He stated that the "wording, contained in Section 2 of the Human Rights Act, very clearly states that our courts only have to take into account Strasbourg judgments, not be bound by them." Khan proposed publishing guidance to "assert the role" of British courts and make it clear that they are entitled to disagree with Strasbourg. He also said that Labour would not "rule out re-legislating to make things doubly clear if matters don’t improve." It is open to debate whether guidance or fresh legislation would be the more effective route of reform; however, the Labour proposals do not acknowledge or address the international dimension of the problem. Article 46 of the Convention requires UK compliance with Strasbourg judgments on cases to which it is a party. Failure to comply with such a judgment is therefore a breach of international law, even if it is not a breach of domestic law.
It seems therefore that a Labour government would largely retain the existing framework of UK human rights law while making some attempts to address the concerns raised by some (including the Conservatives) around Strasbourg's alleged "mission creep".
Given the current polls, it looks unlikely that there will be a majority Conservative or Labour Government after the General Election. For the Conservatives this may well stymy their ability to introduce radical reforms to UK human rights law, while Labour does not appear to have radical reform in mind. For now then, the most likely post-election outcome seems to be a preservation of the status quo. This may provide some comfort to those working in the sphere of public law given the wider constitutional uncertainties facing the UK.
The new May Government has now been fully established and has begun getting to work. Judging by last week's notable developments, foreign affairs is top of the agenda.Brexit diplomacy:... 25 July 2016