The New UK Government Wants To Scrap the Human Rights Act. Does the Act Matter, and Can Anything Be Done To Save It?

The quick answers to the above two questions are Yes and Maybe.  Despite the statutory framework that devolved power to legislative bodies in Scotland, Northern Ireland and Wales, the UK parliament has the power to repeal the 1998 Human Rights Act (“HRA”).  Yet there are significant legal, constitutional and political aspects that will determine the future of the HRA.  Before delving into these, it is worth asking why repeal is even on the agenda.

This proposal is not new. The Conservative party promised to repeal the HRA in 2010 and replace it with a British Bill of Rights, but ended up governing in coalition with the Liberal Democrats. A Commission on a Bill of Rights was set up instead, but failed to reach a consensus. In the 2015 manifesto the pledge re-emerged.  Having won a majority on the May 7^th Prime Minister David Cameron is now pressing ahead. (Also high on his legislative agenda is a referendum on EU membership). The government claims scrapping the HRA would:

• “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 matters in the UK” and,
• “Stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”

It also intends to go ahead with a “British Bill of Rights” to:

• “Remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights.”
• “Reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society”, and
• “Ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job.” This argument will be familiar to readers of recent posts on the second of the two “Fog of Law” reports (2013 & 2015, Policy Exchange).

Readers will see the many legal reasons why most of these aims cannot be achieved by abolishing the HRA, or even withdrawing from the ECHR itself.  Among them is the often-overlooked effect of British common law on human rights protection (on which see Shaheed Fatima (2005; Ch.10) and recent online comment. But much of the political opposition to the HRA is based on fundamental misunderstandings about its effects.

Why we need the HRA.

The approach to international law in the UK is dualist, the rationale being a need to uphold parliamentary supremacy against executive power.  As to how the UK chooses to bring international law into the domestic sphere, for customary norms incorporation is favoured, unless the norm contradicts existing legislation.  Treaty obligations and rights are not however directly enforceable in national courts absent an action to transform them into national law (usually a statute). The Human Rights Act of 1998 does not directly transform the ECHR into UK law but defines “Convention rights” by reference to the ECHR.

Far from removing all control from British judges and parliamentarians however, the HRA charts a middle ground. The Act (s.2) requires that courts “take into account” decisions of the European Court of Human Rights (“ECtHR”) so far as they are relevant to the proceedings. Legislation must be interpreted in a manner compatible with HRA rights (s.3) but if a court finds that a UK Act of Parliament has breached HRA rights, all it can do is issue a “declaration of incompatibility.” It is then up to the legislature to decide how to respond.  Courts may strike down only certain subordinate legislation.

Perhaps the most important provisions for the daily protection of human rights are the requirement that public authorities including courts act compatibly with HRA rights (s.6) and the right of affected individuals to bring proceedings in domestic courts against those authorities (ss. 7-9).

When the HRA was enacted in 1998, the UK probably did not foresee the future direction of domestic and ECtHR jurisprudence on such issues as the application of the ECHR to British soldiers in combat (Smith) and individuals in UK custody overseas (Al Skeini, Hassan  on which see useful posts here and here); the prohibition of indefinite detention of foreign terror suspects in the UK (A v SSHD) and litigation over the use of evidence obtained through torture  (A v SSHD no 2)

Negative press coverage in the UK of combat and terrorism cases (analysed here) presents the HRA as pandering to terrorists and criminals.  Meanwhile the Scottish Human Rights Commission (SHRC) and other supporters of the HRA stress that it has also helped disabled individuals challenging UK welfare cuts, families of patients who have suffered or died due to mistreatment in public hospitals, employees opposing unfair employment practices and individuals fighting excessive collection of personal data.

As to a new Bill of Rights, there are no clear details of what it might contain, but early indications are that it would create a different human rights frameworks for UK citizens, EU citizens and non-citizens: a morally and legally indefensible notion.

Can the Scottish Parliament block the repeal?

Under the Scotland Act 1998 which created the Scottish Parliament and Administration, human rights are better protected than at UK level. The Scottish Parliament cannot legislate inconsistently HRA rights (Scotland Act s.29(2)(d)) and Scottish courts can invalidate Acts of the Scottish Parliament that are held to be incompatible with those rights. Both the Scottish Parliament and Government must also act in a manner consistent with those rights.

Nonetheless, the Scottish Parliament (like that of Wales and Northern Ireland) has no veto on any legislation passed by the UK parliament in Westminster, whether it deals with topics that are devolved or reserved.  But – and this is an important but – a constitutional convention known as the Sewel Convention provides that the UK parliament will “not normally legislate with regard to devolved matters except with the agreement of the devolved legislature.”

The Scottish government takes the position that Sewel applies and that a repeal of the HRA will require legislative consent of the Scottish Parliament.  But whether Sewel applies or not depends on the terms of the draft legislation.  It is triggered only where the UK parliament passes legislation that the devolved legislature could have enacted itself (not the case with a HRA repeal law) or legislation affecting the scope of the legal authority of that devolved legislature.

If Sewel does apply, then things get difficult for the UK government. The Scottish Parliament supports the HRA and the ECHR and passed a recent motion expressing “its confidence in, and support for, the Human Rights Act 1998 as a successful and effective implementation of the convention in domestic law.” The Scottish First Minister described the planned repeal as “appalling” and said her government will oppose it. Indeed that government supports a Scottish National Action Plan that contains a commitment to explore implementing an even broader range of human rights treaties, including the ICESCR. Many civil society groups are campaigning against a repeal, and the SHRC set out its arguments in Human Rights for All, Forwards or Back?  There is widespread public support in Scotland for a progressive position on human rights.  So while the Sewel Convention is not legally enforceable, if it applies the political risk of breaching it is considerable. The Welsh First Minister has taken a similar position to his Scottish counterpart. For Northern Ireland though, there is an additional potential legal obstacle. The repeal of the HRA may constitute a treaty breach, given that it was embedded in the Good Friday Agreement prompting the Northern Ireland Human Rights Commission to warn that it would undermine the peace process.

It remains to be seen how the UK government will respond. It could repeal the HRA in England only, leaving the current framework in place for Scotland, Wales and Northern Ireland.  If it choses a UK-wide repeal, this may provoke each devolved Parliament into enacting its own Bill of Rights.  As the SHRC warns in its submission to the Commission on a Bill of Rights, these piecemeal options would result in victims, courts and public bodies confronting a patchwork of coverage and legal standing.  But this would not insulate these countries from the effect of repeal because key areas remain reserved to the UK parliament (a Scottish Bill of Rights would have to exclude immigration, social security, employment and privacy.

Might all this lead to UK withdrawal from the ECHR? This is unlikely though not impossible, and there are many “ifs” along the way. If the HRA is repealed and if Parliament passes a new Bill of Rights formalising the current UK government’s position that judgments of the ECtHR will not be binding (presumably requiring a derogation of art.46 ECHR), this could prompt not only a domestic constitutional crisis but a clash between the UK and the Council of Europe which oversees ECHR implementation in member states, possibly forcing the UK to withdraw.  (Given the forthcoming UK referendum on EU membership, in 2016 or 2017, another twist in this tale will be the issue of EU and ECJ membership of the ECHR.)  Even if a complete exit from the ECHR were averted, the damage to the international standing of the UK and to ECHR system itself would already have been inflicted: the UK is an original signatory and long-term supporter of the Convention.  There are many in Mr. Cameron’s own party and across the UK and devolved Parliaments who wish to avoid this bleak scenario.