For those accustomed to the debate surrounding the European Convention on Human Rights in the UK, it is a refreshing to hear a clear statement from Chris Grayling, the Secretary of State for Justice, that the Convention is “an entirely sensible statement of the principles which should underpin any democratic nation,” and this on the 14th anniversary of the Human Rights Act 1998 taking legal effect, which allowed any individual to seek redress for human rights violations directly in UK courts.
Headlines have trailed that the Secretary of State, on behalf of the Conservative Party and in advance of the UK general election in May 2015, has issued a threat that the UK will denounce the Convention and repeal the Human Rights Act unless the European Court of Human Rights changes its approach and respects parliamentary sovereignty. Leaving aside the fact that the Court does respect parliamentary sovereignty, subjecting human rights protection to the control of one nation State would be dangerous and would reverse in an instant the progress made in the setting of human rights standards in the last 60 years.
Beyond the headlines are more damning proposals, accurately summarised here – that essentially would remove the right of some individuals to hold the State to account and establish asymmetrical application of human rights dependent upon the qualities of an individual’s ‘responsibilities in society’, the seriousness of the case, and the wonderfully vague threshold of whether the case arises in an area of law that already applies human rights law.
Combined with a severe restriction in the funding available to bring an application for judicial review, and other cuts to legal aid, the whole picture is that the UK government is in the process of retrenchment, fearful of its supreme will foundering on the shores of judicial independence and individual empowerment to bring human rights claims as has been achieved in a long line of famous cases concerning topics from the freedom of the press, to the retention of DNA by police.
In reality, as the proposals include re-incorporating ‘the original post-war Convention’ it may be that these fears are overplayed. This was underlined by the former Attorney-General, Dominic Grieve (who it is suspected was sacked for advising that these very proposals are illegal) who claimed that 99% of decisions taken by the UK courts under a British Bill of Rights, including by the Supreme Court, will be identical to what the ECtHR presently determines. The UK government will be aware of this fact, and their bare politicking is evident when their proposals themselves misrepresent the effect of the Court’s decision in Vinter v UK by stating that Strasbourg prevents the use of whole life tariff sentences without parole, even when the opposite is true.
The charade could be accepted as a cosmetic change, but critically the proposals risk a number of potentially significant breaches of international obligations in the process.
The plan to remove the extra-territorial application of human rights from the purview of UK courts is one of the clearest changes signalled in the strategy paper. It amounts to dangerous rejection of key developments of human rights law that has been developed in over 60 years of jurisprudence, the removal of which is justified on the basis of saving the British Armed Forces the bother of responding to relatively infrequent and occasionally well-founded human rights claims (see posts about Al-Skeini here and here). A consequence of these proposals will be to deny redress in domestic courts for alleged human rights violations committed by armed forces in areas under their control as has occurred in Basra or Helmand. As long as membership of the Convention is retained, a residual route may remain permitting those individuals to bring cases directly to the attention of the Court in Strasbourg through Article 34. The result: every case, weak or strong, will have to be addressed directly at the European Court level, devoid of the domestic filter.
An unintended consequence of these proposals, moreover, seems to be that members of the armed forces may not be able to raise actions before domestic courts for alleged violations of their human rights committed outside UK territory see, eg., Smith and others v The Ministry of Defence (discussed here by Marko).
European Court of Human Rights
The proposals would place the UK in breach of Article 1 of the Convention by which the parties are obliged to secure to everyone in their jurisdiction the rights it confers. The proposals set out that the ability to claim rights are to be linked to an individual’s responsibilities in society, consequently an individual will qualify for the ‘qualified rights’ by way of good behaviour. For clarity, qualified rights form the majority of the claims brought to the Court by way of the individual petition as it is the area in which the State can act to limit the provision of a right upon certain parameters being met, namely a clear legal basis, the pursuit of a legitimate aim, and that it is an action which is necessary in a democratic society.
These plans therefore seek to overhaul this well established test, by permitting the government to excuse its behaviour because of an individual’s particular characteristics. Clearly any rule that has this effect cannot be seen as promoting the universality of human rights protection.
A judgment “if it is to lead to a change in [UK] laws” will henceforth be treated by the UK as advisory only. This is a restatement of the principle of sovereignty and is aimed at warning the Court against future findings of incompatibility. Yet the loose language reveals that determinations of individual decisions that do not require legislative change, such as in the Abu Qatada litigation, will remain binding, defeating any political effect that statement was intended to have.
Other International Legal Obligations
Amongst the proposals is an express intention to weaken guidance in the Ministerial Code requiring compliance with the “overarching duty on Ministers to comply with the law including international law and treaty obligations”. This is potentially one of the most far reaching proposals, extending beyond the field of human rights to affect the whole of the UK’s interaction with international bodies, but unfortunately detail is lacking. This Code is part of the Secretary of State’s Oath of Office. Therefore a removal of this ‘overarching duty’ clears the path for unlimited legislation inconsistent with international law and treaty obligations, and not just limited to the issue of withdrawal from the Convention.
This in turn, affects the sanctity of other international obligations. As a result of the proposals a domestic court will no longer be permitted to extend protection against deportation to those found guilty of ‘serious crimes’ or who are labelled a ‘terrorist’ even where there are substantial grounds for believing that the individual will be subject to torture on deportation (Article 3 UN Convention against Torture). Notably, an example is given of a ‘serious crime’; causing death by dangerous driving which can result in a non-custodial sentences if no aggravating features are present.
As the individual would lose their “right to claim the right to stay”, there is a further risk of rendering a British national de facto stateless, particularly if the mechanism is given a form of automatic application.
Vague definitions populate the whole document. In yet another example, human rights laws will no longer apply in “trivial cases”. The pitfalls of trusting a government department to accurately determine who falls within the categories of ‘foreign criminal’, ‘serious criminal posing a threat to the UK’, or a ‘terrorist’ are notorious. One day prior to the announcement of these proposals, a prosecution against Mozzam Begg for facilitating terrorism was dropped following the disclosure that he had met with MI5 before and after visiting Syria, and was acting with their knowledge and tacit consent. Under a British Bill of Rights and Responsibilities he may have been labelled a ‘serious criminal posing a threat to the UK’ thereby losing his right to remain in the UK.
Playing politics with a constitution?
In spite of the focus on new devolution settlements in the wake of the Scottish Independence Referendum, not one word in the proposal mentions the Good Friday Agreement which entrenches the UK’s obligation to ensure respect for the European Convention in Northern Ireland. Equally no mention is made of s. 100 of the Scotland Act 1998 which is often considered to ‘constitutionalise’ the Human Rights Act, at least north of the border. This oversight is compounded by the fact that Northern Ireland has in recent years engaged in a process of consulting about Northern Irish Bill of Rights to supplement Convention rights in light of the unique political situation in that jurisdiction. It is entirely possible that Scotland too would want specific rights included or excluded within its own distinct legal system.
In 2015 the UK will hold a summit venerating the Magna Carta on its 800th anniversary. On Tuesday David Cameron announced that this old English document, which was supported by a European alliance of Barons, and which is now all but repealed in practice, meant more to him than the European Convention, influenced by eminent Conservative party figures. This paradox further indicates how these proposals are aimed at political objectives rather than legal ones.
Clearly, a significant number of constitutional questions are raised by the asymmetric differentiated application of human rights within a State. A constitutional and international legal quandary awaits any government that attempts implementation of these half-baked proposals.