Getting rid of the Human Rights Act and ‘European’ human rights law

Introduction

As I write, on 22 January 2022, Dominic Raab, the Justice Minister, is presenting plans to Parliament to replace the Human Rights Act 1998 with a British Bill of Rights. This follows the Conservative governments’ recurring promise to reduce the influence of European human rights law in our domestic law, and to replace the Act, which is based on the rights and principles contained in the European Convention on Human Rights. It is also comes hot on the heels of the government throwing their toys out of the pram after the recent interim judgment of the European Court, which insisted that the government delay sending asylum seekers to Rwanda until the full judicial review hearing is determined in mid-July. That outburst was accompanied by a threat to leave the European Convention and the jurisdiction of the Strasbourg Court; although the present announcements do not incorporate that idea.

The plan in outline

The most recent plan incorporates the following ideas.

First, that freedom of speech will be given greater weight in domestic law, in particular by introducing a stronger test for courts to consider ordering journalists to disclose their sources.

Freedom of Speech is already protected by s.12 of the 1998 Act and journalistic sources are protected under s.10 of the Contempt of Court Act 1981, in line with European Court case law (Sunday Times v United Kingdom; Goodwin v United Kingdom). Nevertheless, the augmentation of press freedom is welcome, even though it clashes with the government’s idea that human rights often conflict with crime prevention and detection; can we imagine what the government will say when they can’t order the disclosure of press sources when they want to investigate terrorist or other crime?

Second, there will be a new permission stage in court to prevent trivial legal claims wasting taxpayers’ money. This will help prevent ‘trivial’ human rights claims from wasting judges’ time. Consequently, a permission stage will be introduced requiring people to show they have suffered a significant disadvantage before their claim can go ahead.

The Act, and the Convention, already require the claimant to be a ‘victim’, and the Convention procedure (Art. 35) allows applications to be rejected where they are manifestly ill-founded, or where the applicant has not suffered a significant disadvantage, (unless respect for human rights as defined in the Convention requires an examination of the application on the merits). Of course, the real intention here is to stop claims from the ‘undeserving’, for the proposals say the Bill will also reinforce the principle that responsibilities to society are as important as personal rights, by ensuring courts consider a claimant’s relevant conduct, such as a prisoner’s violent or criminal behaviour, when awarding damages. This of course goes against the fundamental concept that rights are for all; whilst allowing the legal system to punish criminals, and detain suspected criminals. Further, the victim’s behaviour can also be considered in awarding ‘just satisfaction’ (see prisoner voting cases).

Third, the Bill will make it harder for foreign criminals to frustrate deportation processes, thus making it easier to deport foreign criminals and restricting the circumstances in which their right to family life would trump the need to remove them. This will mean that under future immigration laws, to evade removal a foreign criminal would have to prove that a child or dependent would come to overwhelming, unavoidable harm if they were deported. This will curb the abuse of the system that has seen those convicted of hurting their own partners and children evade removal by claiming it would breach their right to family life in the UK.

Domestic legislation already exhorts the courts to give limited weight to such claims (possibly in breach of the separation of powers and certainly in risk of violating ECHR rights), and the threshold of overwhelming, unavoidable harm will almost certainly breach our obligations under the ECHR. In addition, the overwhelming number of claims in these cases are already rejected by the courts on the grounds that they are outweighed by the public interest in deportation or extradition.

Fourth, the Bill will ensure courts cannot interpret laws in ways that were never intended by Parliament. Thus, the power, under s.3 of the Act, to interpret legislation if at all possible in line with Convention Rights will be repealed, allowing our courts to revert to traditional principles of interpretation that respect parliamentary (executive) sovereignty. Further, the Bill will make the UK Supreme Court the ultimate judicial decision-maker on human rights issues, stressing that the case law of the European Court of Human Rights does not always need to be followed by UK courts.

True, the Act does allow the courts a wider power to interpret away conflicts with ECHR rights, but that is subject to the right of Parliament to re-legislate in clearer terms. This it has done in very limited cases, accepting in the vast majority of cases that the interpretation was needed – fair trials, presumption of innocence, same-sex rights etc.. With respect to the ‘supremacy’ of European Court case law, it is already clear that our courts do not have to follow Strasbourg case law, and in turn, the European Court allows our courts a discretion in interpreting and applying domestic law in line with ECHR rights. And will our Supreme Court be more deferential? Possibly in its current membership, yes.

Fifthly, it will prevent courts from placing new costly obligations on public authorities to actively protect someone’s human rights and limit the circumstances in which current obligations apply. For example, police forces having to notify gang members of threats towards them from other gangs. Specifically, it will insulate the Government’s plans to increase the use of prison Separation Centres against legal challenge from extremist offenders claiming ‘a right to socialise’.

This proposal is aimed at (re)granting immunities to public authorities (the police, and possibly social service providers?) who can currently be sued under the 1998 Act for failing to protect victims from threats to their life, or inhuman and degrading treatment. Such institutions are provided with a good deal of deference and flexibility in carrying out their duties, and cases against them rarely succeed, unless there is evidence of systemic failure. Proposals to prevent human rights from being used as a way to bring claims on overseas military operations can be criticised on similar grounds (and will hardly be popular with the families of armed personnel who currently bring claims under the Act). With respect to the rights of gang members and those in prison as extremist offenders, the European and domestic courts already allow restriction of those individuals’ rights on the basis of deference, above, or prison discipline and order. However, that does not obviate the need to insist on public authorities carrying out their duties responsibly and within the framework of human rights and human dignity.

Sixthly, the Bill will confirm that interim measures from the European Court of Human Rights – such as the one issued last week that prevented the removal flight to Rwanda – are not binding on UK courts.

This, of course, is the basis of the government’s rancour and its desire to change our domestic law and repeal the 1998 Act; when the European Court dare to overturn an executive and judicial decision. As we have seen, the actual number of cases that support the government’s contentions are relatively small; and the number of cases involving the UK has dropped dramatically since the Human Rights Act came into operation. There have been about 10 cases involving the UK in the last two years, and half of them were decided in favour of the government (on social welfare law, and anti-terrorism legislation etc.).

The proposals are aimed at restoring national sovereignty and the supremacy of our judges and the legal system in determining the limits of human rights. The government has had enough of the Convention, the European Court, and the principles of human rights it uses to uphold Convention rights, including the weight it attaches to rights and the type of individual it allows right to. Yet the government, at present, are certain of one thing:

‘This will be achieved while retaining the UK’s fundamental commitment to the European Convention on Human Rights.’

Give me strength to finish this piece!

What this all means

At present the ECHR operates primarily at the international law level, the UK is a member state and agreed to uphold ECHR rights and accept the jurisdiction of the European Court if it finds against us. In addition, our domestic law is influenced by the ECHR and the European Court because the Human Rights Act 1998 gives effect to ECHR rights and our judges have to take into account ECHR case law and rights.

If the HRA was repealed, which because of sovereignty, is possible, it will be replaced by a Bill of Rights which would contain British rights (not ECHR rights).  They will be similar (the right to a jury trial will be included, despite the outrage caused by juries failing to convict protestors for criminal damage), but our courts would follow these rights and not be so influenced, if at all, by the ECHR and Court. Those rights will be diluted in certain cases where that would conflict with the public interest, and/or where irresponsible law-breakers try to assert them.

If we stayed in the ECHR, individuals could still bring cases to the European Court and we would be bound in international law to abide by any decision. So repeal of the HRA would need to be careful, so that our domestic law is not in breach of the ECHR, and our international obligations. The government says the Bill and laws will not conflict with the ECHR, but of course they will, as that is the whole point of questioning European human rights law and repealing the Act! If we left the ECHR then the government believe that it could pass whatever (human rights) legislation it wanted. However, we are still member states of various UN human rights treaties, so would risk being in breach of those treaties.  We would also face international criticism, and being (further) ostracised and humiliated, for not abiding by international law. That would put us in the same position as Russia; not great company me thinks.

Which brings us to the government’s ‘moral’ argument – it is wrong to be led and influenced by European Law and judges and we should be led instead by British values – not least, of course, parliamentary – or rather executive – sovereignty. The recent intervention on sending asylum seekers to Rwanda is a prime example.

On the other hand, the ECHR and its ‘incorporation’ into domestic law has provided an objective safeguard against executive power over human rights, based on principles established by a treaty that the UK was instrumental in constructing, and which operates very much like a bill of rights, which everyone but the UK has in its constitution. All Council of Europe states (bar Russia) adopt the ECHR as the basis of their human rights, and accept the Convention and its case law as a necessary safeguard for protecting rights and balancing

Some say – don’t ask me to commit on this – that the recent plan is no more than an effort to stop judicial and political regulation of governmental power, as happens in every other constitution, and that it is based on populist contempt for anything un-British. Whatever the case, the proposals are based on misconceptions and an exaggeration of the reach of the Convention, the Act, and of human rights in general.