In the run-up to the 2015 UK General Election, David Cameron pledged to scrap the Human Rights Act and replace it with a ‘British Bill of Rights’, details of which were expected in a Bill to be proposed by the Queen’s Speech. That said, following the Tory victory, government proposals appear to have slid down a progressively less ambitious chain, from a bill to ‘proposals’ and ultimately a ‘consultation’. The timeframe proposed by the Conservatives appears to have been struck by a similar lethargy, lurching from the first hundred days, to ‘this autumn’, to ‘a few months’ time’. In contrast with this fumbling around for the formulation of an alternative, the clarion call issued by Tory party grandees for scrapping the HRA has resounded brashly, loudly, and often. This begs the question of what is so uniquely pernicious, deviant, or even malicious about the HRA that the Conservative Party has felt this great need to mark it as a target for crucifixion.
Even before turning to the logical and normative issues undergirding the desirability of the HRA, the very notion of ‘repealing the HRA’ deserves closer interrogation. The HRA, by virtue of Section 6, makes it unlawful for a public body to act in a way incompatible with a Convention right under the European Convention of Human Rights (ECHR), and provides in Sections 3 and 4 the mechanisms by which it acts on the Convention. S3 provides for a ‘duty of consistent interpretation’, such that ‘so far as it is possible to do so, primary legislation…must be read…in a way which is compatible with the Convention rights’, while s4 allows certain courts to issue ‘Declarations of Incompatibility’ which are non-binding statements as to the incompatibility of legislation with particular convention rights. The HRA therefore, does not in itself promulgate or serve as a fons et origo of rights, and merely repealing the HRA would still leave recourse to the European Court of Human Rights (ECtHR) for vindication of the relevant Convention-protected right. This dynamic thus leaves three possibilities open for what ‘repeal of the HRA’ entails:
First, this might refer to merely repealing the HRA as a piece of domestic legislation, and leaving recourse to the ECtHR. This does not appear to change all that much – litigants are still able to have recourse to Strasbourg caselaw and Convention-protected rights, with the primary difference being that they would likely have to take their litigation through the drawn-out process of appeals before an application was made to the Strasbourg ECtHR. This would engender needless costs, and further clog up an already strained judicial docket.
The second possibility is that the Tories would not only repeal the HRA, but exit the ECHR altogether. While this would ameliorate the aforementioned situation concerning recourse to the ECtHR, it brings as corollaries a host of further complications. As the former Conservative Attorney-General Dominic Grieve trenchantly noted in a speech at UCL where he spoke against repeal of the HRA, exit of the ECHR would raise difficulties with the devolution agreements given the enshrining of Convention rights in the devolution settlements, and also call into question the UK’s international treaty obligations vis-à-vis Northern Ireland and the Good Friday Agreement’s explicit reference to incorporation of the ECHR. The devolution difficulty is accentuated by the reluctance of the devolved administrations to embrace exit of the ECHR, with Sturgeon and the SNP in particular vowing resistance, and potentially using ECHR-exit to ground calls for a further referendum. Buttressing these difficulties is the relationship between the ECHR and the EU, with various EU officials having made clear statements indicating the expectation of continued ECHR accession, and the European Court (as distinguished from the ECtHR) expressly referring to ECtHR doctrines in its own jurisprudence. In sum, the complex web of international and domestic obligations renders this second interpretation of ‘repealing the HRA’ similarly bogged down in a quagmire of political and legal difficulty.
The third possibility is the most far-reaching and radical, that ‘repeal of the HRA’ entails not merely its statutory repeal, but also exit from the ECHR and a British exit of the EU. This article does not propose to address the merits of such a momentous decision, but merely seeks to highlight the deeply interconnected matrix of issues a flippant call for ‘repealing the HRA’ might ellipse. Even if one were to take repeal to this extent, it would resolve neither the devolution difficulties, nor the Good Friday Agreement concerns raised, and is instead likely to spawn a plaguing multiplicity of economic and political difficulties given how integrated EU regulations have become in the UK. Suffice to say, this interrogation of what ‘repeal of the HRA’ entails has sought to elucidate the multifaceted issues which are inextricably linked to the decision, and the subsequent analysis of the normative desirability of repeal should be refracted through these definitional considerations.
Examining the arguments for repeal as put forward by various Tory party myrmidons, the thrusts are fourfold: Mission-creep and over-extension by the ECtHR, abuse of Convention-rights by ‘undeserving’ claimants, the importance of keeping the British Supreme Court ‘Supreme’, and the comparative desirability of a ‘British Bill of Rights’. These arguments will be questioned in turn.
The notion of mission-creep and over-extension by the ECtHR has been one which was loudly trumpeted by, inter alia, Chris Grayling, Michael Gove, and David Cameron. The example used most often to illustrate an alleged manifestation of this mission-creep is that of prisoner-voting, with the accompanying suggestion that the ECtHR has overreached the mandate it was given and has started adopting powers in a broader field than is permissible.
Even setting aside the fact that the ECtHR is not demanding that the UK allow all prisoners to vote and is only seeking some more nuanced and textured response than a blanket ban on prisoner-voting (perhaps allowing certain prisoners with sentences below a certain limit to vote instead), there are three difficulties with this notion of mission-creep: First, examples like prisoner voting tend to be somewhat overstated when seen in the context of the sheer number of applications brought against the UK before the ECtHR. In 2013, the ECtHR dealt with 1652 applications against the UK, of which 98.8% were declared inadmissible or struck out, and only 0.4% were successful. This highlights that this ‘mission-creep’ is nowhere as prevalent or widespread as fearmongering from certain segments would suggest, and accentuates the point that merely pointing to prisoner-voting cannot be used to evidence allegations of some ‘broad trend’ of mission-creep. Second, even if one were to blithely disregard this evidence and accept that there was a degree of mission-creep, it might simply be acknowledged that this is the nature of law which is developed by increments, and these disagreements as to the legitimate ambit of Convention rights can be resolved by dialectic between the ECtHR and UK Supreme Court. Lord Reed, a Justice of the UK Supreme Court, recognised in a lecture at the Inner Temple in 2013 that Strasbourg has itself emphasised on numerous occasions the ‘fundamentally subsidiary role of the Convention’ (in Hatton v UK), and has changed its mind on positions like the use of hearsay evidence after persuasion from the UK courts in cases like Al-Khawaja. Similarly, the difference in result between Z v UK and Osman v UK evince instances where Strasbourg changed its mind and allowed its case-law to be directly affected by arguments stemming from English common law, in these cases concerning the ability of courts to strike out ‘hopeless’ claims. This highlights that even if there is some element of mission-creep, the ECtHR is not deaf to dissent, and is responsible enough to seek to resolve such disagreements in conjunction with domestic courts. Third, and perhaps most pressingly, simply asserting that a particular act is ‘mission-creep’ does not in itself convey much in the way of logical condemnation. Put simply, it is name-calling, given that the text of the Convention is broad enough to encompass a diverse scope of applications. Thus, simply asserting ‘mission-creep’ is quite inadequate, and examination should be had of the substantive content of the alleged ‘wrongful’ creep. While it might be tempting to suggest that no prisoners at all should be granted the right to vote, one can readily think of situations where individuals imprisoned with short sentences for less serious crimes ought not to have their fundamental democratic right removed. Similarly, while David Cameron rails against Convention rights continuing to apply on battlefields in Iraq and Afghanistan, one can justly question why soldiers who are sent to battle with inadequate or faulty equipment should not have some recourse against the MOD. It is noteworthy that it was only with the standard of review granted under the Convention that Ghaidan v Godin Mendoza was decided to allow homosexual partners the protection of the Rent Act, with domestic rights-protection having decided earlier in Fitzpatrick that homosexuals did not have such protection. These difficult questions of equality, justice, and fairness deserve more scrutiny than being brushed aside as ‘mission creep’, and that scrutiny does not appear to have been particularly forthcoming from Parliament, particularly in the case of the Rent Act. Mission-creep therefore does not appear a wholly convincing argument for repeal.
A second argument for repeal is that the HRA is abused by ‘undeserving’ claimants, with nationalist sentiment being stoked by individuals like Theresa May railing about Abu Qatada and why he gets to claim rights-protection under the HRA when he was involved with terror investigations. The notion that the HRA grants both procedural and substantive rights and protections to such claimants is not new, with arguments being made that the ECHR prohibition on extradition to a place where the claimant might face torture ‘denies justice’ for victims. The upshot of this is that certain individuals do not ‘deserve’ protection under the HRA, and should be exposed to the full ambit of alleged ‘justice’, even if that nominal ‘justice’ includes elements like torture.
This argument is similarly problematic on three levels. First, and quite clearly, the notion of ‘undeserving’ claimants is questionable. If there really are issues of human rights at stake, is there really such a thing as an ‘undeserving’ claimant given that the claimant is seeking to vindicate a right granted merely by virtue of his being human? Short of denying the humanity of the claimant, it is difficult to suggest that he ought not to be granted access to basic human rights, or at the very least the due process to determine what those rights are. Moreover, if opponents of the HRA were to deem certain individuals ‘undeserving’ of such rights, that begs the question of what rights ought to be taken away, and where the line is ultimately drawn – Torture? Torture of relatives? Capital Punishment? The notion of an ‘undeserving’ claimant is thus a very dubious one. It appeals to some voters who prize being ‘harsh on crime’, but reveals little in the way of substantive logic as to why the HRA ought to be repealed, and to what extent human rights protection should be reduced for these ‘undeserving’ individuals.
Second, the notion of the HRA being unique in helping ‘undeserving’ claimants is questionable, given that English Law may well be construed as doing precisely the same thing in certain circumstances. In A v Secretary of State (2005), Lord Bingham of the then House of Lords insisted that ‘the English Common Law has regarded torture and its fruits with abhorrence for the past 500 years…’, suggesting that the domestic Common Law would provide similar protections, even for allegedly ‘undeserving’ claimants. Similarly, in the litigation following the Al-Yamamah arms deal, British politicians were happy to use political pressure to curb the Serious Fraud Office’s investigation into corrupt practices tainting a deal between BAE Systems and Saudi Arabia. Arguably, this might be construed as protecting similarly ‘undeserving’ claimants (who were later found guilty in an American court), but domestic processes and British politicians were happy to oblige in order to protect their vested financial and political interests. The ECHR and HRA are thus not alone in this alleged ‘abuse’ by ‘undeserving’ claimants, and if anything, English Law appears to afford protection to similar groups. Third, the notion of ‘undeserving claimants’ does violence to the very civilising principles on which society is predicated. This is differentiated from the first rebuttal above in that the earlier argument goes towards the indeterminacy of bright-line distinctions as to which claimants are ‘undeserving’, and what specific rights they are ‘undeserving’ of. This argument goes instead towards the notion that even if such individuals have committed heinous wrongs, there ought to still be a modicum of civilized treatment as befits the UK’s standing as a civilised nation founded on certain principles of decency and fair treatment of human beings. Insofar as one accepts that even people who have done bad things deserve some modicum of fair treatment, one can understand that they ought to be able to vindicate that fair treatment, and it is in that manner that the UK stays above the barbaric retributive ‘justice’ organisations like ISIS purport to be inflicting. To sacrifice those values at the altar of something being ‘deserving’ or otherwise profanes and undermines the very ideals the UK purports to be protecting.
The third argument for repeal, in a decidedly nationalist swing, is that the British Supreme Court ought to be kept ‘Supreme’ and imbued with the power of final decision-making. This is contrasted to final decision-making being ‘outsourced’ or ‘exported’ to some foreign court, and seeks to strike a nationalist chord in audiences.
This argument, however, is similarly disingenuous. First, it says very little was to what ‘keeping the British Supreme Court “Supreme”’ is supposed to mean. The British Supreme Court is ‘Supreme’ in that it gets to make final decisions on matters concerning English Law, and that supremacy is not challenged by the HRA, which merely requires it to act in a manner congruent with the UK’s international obligations under the ECHR. Courts all over the world are cognizant of and respond to international obligations, and this does not detract from their ‘Supreme’ nature. Blandly asserting supremacy without elucidating what that actually entails does not contribute much logical weight to argument, and even in the absence of the HRA or ECHR, the UK Supreme Court has, in recent cases like Kennedy v Charity Commissioner, HS2, and Osborn v Parole Board, emphasised the notion of Common Law Rights which operate to protect some of the human rights also protected under the HRA/ECHR. This is noteworthy in highlighting that domestic courts are developing their own jurisprudence along similar trajectories as the ECtHR as a conscious decision (as opposed to being obliged to do so), and highlights that keeping the British Supreme Court ‘Supreme’ might not necessary be wholly incompatible with the HRA or ECHR. Second, the notion of ‘Supremacy’ arguably sees its primary challenge not from the HRA or ECHR, but from European Union Law (which has its own doctrine of the Supremacy of EU Law) and other treaty obligations such as those which operate under the aegis of the United Nations (Security Council) and other such entities. The express EU doctrine of Supremacy, something never enunciated under the ECHR or HRA, appears arguably more at odds with keeping the Supreme Court ‘supreme’, but it should be noted that with the EU, as with the UK’s other international obligations, it was an active decision on the part of the legislature to engage in those overarching endeavours. Appraisal of the normative desirability of such endeavours at this point ought therefore to be a more holistic exercise of whether some concessions of supremacy are acceptable in light of the significant benefit received, rather than an almost petulant insistence on the ‘Supreme Court being supreme’ without more. Third, and most importantly, this notion of keeping the UK Supreme Court supreme is at tension with earlier objections about mission creep and undeserving claimants because it begs questions about whether the main problem critics of the HRA have is with a) the rights being afforded to such parties or b) the ECtHR being (allegedly) the court which makes final determinations as to human rights protection. Given that the expansion in Common Law Rights and their assertion by the British Courts means that many instances of ECHR-protection could be encapsulated under domestic Common Law norms as well, having British Courts as ‘supreme’ and the final arbiters of rights-protection could still engender a similar level of rights-protection, leaving the outcome still open to criticisms of ‘mission-creep’ and ‘undeserving claimants’. If what the critics of the HRA want is a general reduction in rights-protection standards, then what it ought to do is come out explicitly and specify which rights ought to be removed from which groups, rather than hiding behind this quasi-nationalist argument. Of course, such critics might disagree both with the level of protection and which body determines it, but given the trend of the domestic Common Law’s development towards embracing Common Law Rights, the allegation that the British Courts are not ‘Supreme’ by virtue of human rights and the HRA rings somewhat hollow.
The final argument for repeal centres on having a ‘British Bill of Rights’ instead. This sounds attractive, and can be construed as highlighting how rights-friendly and protective a particular administration is. However, in the absence of an actual draft document which outlines what a ‘Bill of Rights’ will include, it is difficult to come to any conclusive analysis. That said, it begs the question of why a domestic Bill of Rights cannot coexist alongside the HRA/ECHR as it does in France and Germany, and that in turn begs further questions of whether there are any substantive differences between the rights which would be protected under a British Bill of Rights and the ECHR. Are Britons, by virtue of having a ‘British’ Bill of Rights deserving of qualitatively different protection? More rights-protection or less rights-protection? Is there something unique about the nationality of a right that affects how it interacts with the people supposed to be protected by it? The broader point here is that little has been done to demonstrate that a British Bill of Rights is wholly incompatible with the HRA and that the two are incompatible of coexisting, a point underscored by the absence of any real proposals on the table thus far as to what would be included in such a Bill of Rights. If anything, however, the symbolic effect among judges, British citizens, and foreign governments of the repeal of the HRA and withdrawal from the ECHR should not be under-estimated, even if they are replaced by a Bill of Rights instead.
Having outlined the dubious nature of the arguments for repeal and cast aspersions on their defensibility, this article now turns to the arguments against repeal. The arguments here are threefold:
First, the HRA protects human rights by providing courts with a modus vivendi between a tortured interpretation of a statute in order to read it in compliance with human rights and simply declining to offer any protection for human rights at all. The s4 Declaration of Incompatibility is a useful tool to draw attention to contentious matters, and to focus public attention on contentious fields of human rights development. The whitewashing of the HRA would deny courts this tool, and leave them with the choice of actively ‘interpreting’ non-human-rights-compliant legislation in what might be a contrived manner to ensure rights-compliance, and not protecting rights at all. This false dichotomy of ‘all-or-nothing’ needlessly constrains the courts and hampers the effective pursuit of justice.
Second, and on a more international scale, former Tory Attorney-General Dominic Grieve has rightly observed that not only is protecting human rights important, being seen to do so is also significant. He rightly notes that ‘as an international treaty, (the ECHR’s) success is dependent on the peer group pressure amongst its adherence to promote respect for it and help ensure its judgments get implemented. That is why…our departure as one of its principal creators will be so damaging’. Grieve further notes that countries such as Russia are using the UK position to procrastinate on implementing judgments, and the UK’s ambivalence vis-à-vis the ECHR is being cited by countries such as Venezuela in ignoring obligations under the American Convention on Human Rights prior to 2012. British support for human rights worldwide will sound particularly hollow if they are seen as resiling from their own human rights instruments, and Britain’s approach has explicitly been cited as support by the Kenyan President in resisting the jurisdiction of the International Criminal Court for murder and rape charges. Perhaps human rights have become less important to the UK in light of income to be made from such states, but it is a long way to have fallen from the heady days of Britain having been a world-leader in standing up to slavery, Nazi tyranny, and Soviet oppression.
Third, one of the strongest arguments against repeal is that the HRA provides additional layers of checks and protections, even above and beyond those envisaged in any British Bill of Rights or what can be provided for solely through the Common Law. By having a separate institutional body also tasked with rights-protection, there are greater safeguards for such rights because that institution can provide a further level of review on domestic actions. Granted, there may be occasions that the ECtHR makes mistakes, but it is also similarly uncontroversial that there are instances where the UK Courts are in error. It is not suggested that the ECtHR is some infallible panacea upheld by the HRA, but that it is by the dialectic process of two imperfect courts engaging in dialogue with one another that a synergistic via media that strikes an appropriate balance between respecting national autonomy and protecting human rights can be found. The recent trajectory of case law like Osman and Z suggests that this dialectic process will continue, and in light of that it is submitted that even if some national sovereignty would have to be ceded, that is an acceptable price to pay if one genuinely seeks to protect human rights.
In sum, the perilous precipice the HRA finds itself on is the result of an intersection of Law and Politics. The HRA was always in a difficult position given that it had to protect the fundamental rights of unpopular groups. As one barrister put, it ensures that even ‘the mad, the bad, and the Jihad’ are treated like human beings. Unsurprisingly, this is not widely popular, but what makes the attacks on the HRA even more perfidious is the fact that the primary alternative, the British Bill of Rights, has been curiously elusive. While Tory politicians have had no qualms wheeling it out as this grand alternative, they have been notably mum on its details, and have consistently pushed the timeframe for its release back. In this, the dialogue on the HRA and its desirability is left hamstrung because no viable alternative is even put forward. Instead, the attacks that can be focused on are highlighted, and the comparative element underplayed. This approach, while perhaps not an intentional media strategy, has proven effective at smearing the discourse on the HRA before it has even taken place, all while building anticipation towards this glorious new dawn which the British Bill of Rights is alleged to, but never shown to, provide. In concluding, it is perhaps appropriate to question the kinds of aspirations the UK sees as it moves forward: Does it hope to continue as a world-leader in rights-protection, eschewing nationalist drum-beating for a sensible dialectical dialogue with institutions dedicated to rights-protection, or will it aspire towards an insular, reduced scope for rights-protection, cutting back on human rights in concession to vindictive calls for harsher punishment? The struggle for human rights has taken innumerable dimensions over the past centuries, and to take a step back now for the unconvincing reasons put forward would be decidedly regrettable.