Michelle Donnelly, a tutor in Human Rights Law at the University of Strathclyde, examines the Tories plans to abolish the Human Rights Act, and argues that its likely to come into conflict with leaders in Brussels and Edinburgh
THE incumbent British Government are moving forward with plans to scrap the Human Rights Act, expected to feature in the forthcoming Queen’s Speech on 27 May. In light of its recent election win, the Conservatives will capitalise on the party’s slim majority to deliver this manifesto promise on an accelerated timetable. The newly appointed Justice Secretary, Michael Gove, will do so under the caustic banner of “bringing rights home”.
The abolition of the landmark legislation will constitute a key element of the 100-day policy offensive which will set the tone of David Cameron’s second term in office.
The Conservative’s commitment to this proposal has grabbed the headlines, and rightly so, given that it has far-reaching constitutional ramifications that will be felt across the UK.
Paradoxically, in spite of the SNP’s landslide election victory in Scotland, the Scottish people are faced with a Government prepared to scrap, not Trident, but the Human Rights Act.
Gove is tasked with implementing a key proposal outlined in the Conservative manifesto: to repeal the Human Rights Act and to supplant it with a British Bill of Rights.
This process will undoubtedly be fraught with legal complexities and political opposition. The manifesto pledged simply that the Bill of Rights would “remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights.”
Beyond this, details are scarce as to what the Conservative’s Bill of Rights will include, not least the extent to which it will differ from the Human Rights Act itself.
The Human Rights Act 1998 incorporates into the domestic law of the UK the European Convention on Human Rights. It guarantees that the rights, and obligations, contained are observed and protected throughout the UK.
The Human Rights Act has two principal effects: first, it transposes the rights contained in the European Convention into the domestic legal systems of Scotland, Northern Ireland, England and Wales.
Secondly, and crucially, it places an absolute obligation on all public bodies, including institutions such as the police, local authorities and the National Health Service, to act in a way that is compatible with those rights.
How might the Conservative’s Bill of Rights differ from the scheme of protection afforded by the Human Rights Act?
The implementation of the Human Rights Act in 2000 had the effect of giving individuals standing to raise claims of human rights violations before the domestic courts, allowing them to avoid pursuing protracted proceedings before the European Court of Human Rights in Strasbourg.
The pallet of rights protected by the Human Rights Act includes, but is not limited to: the right to life; the right not to be tortured or subjected to inhuman and degrading treatment or punishment; the right to liberty and security; the right to a fair trial; the right to respect for private and family life; the right to freedom of thought, conscience and religion; the right to freedom of expression; and, the right to freedom of assembly and association.
How might the Conservative’s Bill of Rights differ from the scheme of protection afforded by the Human Rights Act?
The rights to life and a fair trial are designated as “basic rights” by the Conservatives and so presumably would be included in its Bill of Rights.
Any bill that claims to “remain faithful to the basic principles of human rights” must also, at the very least, make provision for freedom from torture, freedom of religion, freedom of expression and the right to private and family life.
In fact, it is difficult to conceive of a British Bill of Rights that excludes any of the rights contained in either the European Convention or the Human Rights Act.
While many civil rights groups have condemned the Conservative’s pledge to repeal the Act, many commentators have pointed out that the superseding Bill of Rights might look indistinguishable.
However on one decisive issue, the Conservative manifesto is clear: a British Bill of Rights will “stop terrorists and other serious foreign criminals who pose a serious threat to our society from using spurious human rights arguments to prevent deportation”.
The Conservatives’ plans appear to reflect a commitment against the extraterritorial application of human rights and towards extraordinary rendition and deportation, irrespective of whether the individual concerned will be subject to human rights abuses in the receiving country. This position directly conflicts with the case law of the European Court.
The Court has been robust in the face of increasing political pressure to relax human rights constraints on counter-terrorism measures deployed by signatory states.
Such cases invariably engage the right not to be tortured or subjected to inhuman and degrading treatment or punishment. This right is absolute in its nature and cannot be derogated from by any signatory of the European Convention, neither in peace nor in wartime.
Any dilution of this right, or indeed others, could place the UK in breach of its international obligations. These fundamental rights cannot be cherry-picked for political gains; they constitute the essential foundations upon which any democratic society is based and, as such, must endure.
Overall, it seems that the Conservative’s approach, as it states in its manifesto, lies in an imperative to “break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matter in the UK.”
It appears that the Conservative’s problem is not with the Human Rights Act but, rather, with the European Court and it’s supervisory jurisdiction.
Ironically, the Conservative’s plans would serve only to ensure that more decisions are made by judges of the European Court, than by judges in the UK courts.
In the UK, where constitutional guarantees are divined rather than codified, the case law of the European Court constitutes an invaluable source of human rights protection for British citizens.
The promotion of human rights should be progressive not regressive, a sentiment which is given practical effect by the evolutive interpretation of convention rights by the Strasbourg court.
The idea that the European Convention is a living instrument that must be interpreted in light of present-day conditions is clearly opposed by the Conservatives. It has, however, been a central feature of the European Court’s case law from the outset.
The British establishment’s obsession with parliamentary sovereignty is out-dated, self-aggrandising and detrimental to European and wider international relations.
The UK cannot break from its responsibilities under the European Convention or the binding influence of the European Court simply by repealing the Human Rights Act.
While repealing the Act would make it more difficult, more time-consuming and more expensive for individuals to assert their rights, they would remain able to do so before the Strasbourg court.
Ironically, the Conservative’s plans would serve only to ensure that more decisions are made by judges of the European Court, than by judges in the UK courts. The obligations under the European Convention would continue to apply in the event that the Act were scrapped.
Over 60 years ago the UK ratified the European Convention and, in doing so, agreed to secure its rights and freedoms for everyone within its jurisdiction and to rectify any violation found by the European Court.
Crucially, the UK remains bound by these fundamental responsibilities regardless of the legal status of the Human Rights Act.
The only way for the Conservatives to achieve what they hope would be to withdraw completely from the European Convention. Although this is a legal possibility, requiring the serving of a six-month notice period, it is unlikely to be a political probability.
Withdrawing from the European Convention would have far-reaching consequences at both a domestic and European level.
It could have serious implications regarding the UK’s continued membership of the EU, given that ratification of the Convention is a prerequisite to membership.
Any proposal to repeal the Human Rights Act or to withdraw from the European Convention will be tied up inextricably with the devolution settlements in Scotland, Northern Ireland and Wales.
Under the Copenhagen Criteria, applicant states must have “stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.”
The European Commission’s opinion of July 1997 on Bulgaria’s membership application elaborated on these political conditions and confirmed that any country wishing to join the EU must first have ratified the Convention and its main additional Protocols.
Any such withdrawal from the European Convention would therefore significantly undermine the UK’s future role within the EU.
Additionally, any proposal to repeal the Human Rights Act or to withdraw from the European Convention will be tied up inextricably with the devolution settlements in Scotland, Northern Ireland and Wales.
The legal instruments that grant power to the devolved legislatures presuppose ratification of the European Convention.
Furthermore, under the terms of the Sewel Convention, the implementation of the Conservative’s proposals would likely require the prior consent of each separate nation of the UK. The Scottish Government has confirmed that such consent will not be given.
Moreover, the Committee for the Administration of Justice in Belfast has made clear that repealing the Act would breach the Terms of the Good Friday Agreement in Northern Ireland.
In the immediate aftermath of the election results, speculation as to the potential for a second referendum on Scottish independence has grown. It is clear that the SNP will be reluctant to call a second vote until confident that independence will be won.
However a “once in a generation” referendum might conceivably happen twice if exceptional circumstances arise, such as a UK vote to leave the EU within which Scotland votes to remain.
During the recent election, Scotland returned an overwhelming majority for a party prepared to scrap trident and has wound up with a government prepared to scrap the Human Rights Act.
It may well be that the Conservative’s plans could create the exceptional conditions required to open the door for a second referendum.
Picture courtesy of doodle dubz