The Tories and the ECHR: Mere Incompetence or Deliberate Deception?

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The Conservative Party in the UK has released a paper entitled ‘Protecting Human Rights in the UK – The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’. This is in the aftermath of David Cameron’s pledge during the Conservative Party conference last week to scrap the Human Rights Act 1998, the domestic statute which transformed the European Convention of Human Rights into UK law, allowing for ECHR rights, as transformed through the HRA, to be directly invoked before and applied by UK courts. This is to be replaced by a ‘British Bill of Rights and Responsibilities’, a draft of which the Tories have pledged to shortly publish for consultation.

The pledge, and the paper, have already provoked a flurry of responses, both in the press and in numerous blog posts (though the best summary is aptly given by the Daily Mash in an article entitled ‘Human rights laws to be replaced by gut instinct‘). Many of these articles and blog posts, including the post here by Martin Browne,  have made a number of important points regarding the impact of such a change in UK law and international law, as well as with respect to devolution and the Good Friday Agreement. This short post aims to simply highlight the impact of the proposed Conservatives’ changes from the perspective of public international law. This impact would be rather minimal, except that the proposed changes will increase the danger of the UK running afoul of its international obligations, of it engaging its international responsibility. That is, of course, unless the real aim is to withdraw from the ECHR.

I. The Tories’ Grievances with the EC(t)HR

Most of the paper that was published reveals either profound misunderstanding of the workings of international law and of the obligations of the UK under international treaties or an attempt to deliberately mislead the public on the effect and future of UK participation in the ECHR. The paper itself seems simplistic and populist and at times clearly misrepresents the legal position under international law. To take the last point first, the paper starts with a long list of grievances against the European Court of Human Rights, and its perceived ‘mission creep’. Whether the ECtHR has at times stretched the meaning of Convention rights (and at other times has not gone far enough) lies in the eye of beholder. That is one thing, however, and it is quite another to misrepresent what the ECtHR has said. The list of grievances, for example, includes the claim that the ECtHR ruled that ‘murderers cannot be sentenced to prison for life, as to do so was contrary to Article 3 of the Convention’ (on the prohibition of torture) (p 3). This is of course not what the ECtHR Grand Chamber said in Vinter and ors v UK. What it did say was that a life sentence must at some point allow review and reconsideration by State authorities ‘to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds’ (para 119). Simply put, there must be at least some possibility of applying for reducibility of the sentence down the line. There is no obligation on the State to grant the application, simply to consider it on legal and compassionate grounds.

The paper also takes the ECtHR to task for considering that the right to vote of prisoners falls within the ambit of the Convention, and for the interpretation of Article 8 as allowing certain prisoners to go ahead with the artificial insemination of their partners, or as not permitting the transfer of foreign nationals who have committed serious crimes in the UK (and sometimes those who have not been convicted of any crime but just look dodgy in the Tories’ infallible judgment) to States where there is a real risk that their rights under the Convention will be violated. So what is the Tory proposal for dealing with these ‘grievances’?

II. The Tories’ Proposals and International Law

‘Restoring Common Sense and Putting Britain First’ (p 5)

This line alone, lifted directly from the paper, is enough to demonstrate the populist and simplistic overtones of the proposals, alluded to above. Leaving aside that common sense is rarely that common, or that my sense, which is shared by some people at least, would have little in common with the sense of many Tories (if it is anything like what is reflected in the paper they published), let us see how the Tories propose to ‘put Britain first’ and what their understanding of international law amounts to (hint: little, unless they are purposefully seeking to deceive readers). This is with apologies to readers for the trite character of the following observations.

a) Misrepresentation of the Position under International Law

According to the paper, the Tory reforms ‘will mean that’:

‘The European Court of Human Rights is no longer binding over the UK Supreme Court.’

Well, for starters, the European Court of Human Rights was never ‘binding over the UK Supreme Court’ (whatever that may have been intended to mean). In fact, the only thing that is binding over the UK, and thus its organs, including the UK Supreme Court, is the European Convention of Human Rights. This will continue to be the case up to and until the UK withdraws from the European Convention. What is also binding over the UK, and thus also the Supreme Court, are decisions of the European Court of Human Rights in accordance with Article 46 ECHR, i.e. in cases where the UK is a party. This will also continue to be the case up to and until the UK withdraws from the Convention.

Finally, even the HRA does not make ‘the European Court of Human Rights binding over the UK Supreme Court’. What it requires is that UK courts ‘take into account’ decisions of the ECtHR when interpreting the HRA. This makes sense: the UK, including through its courts, seeks to comply with its international obligations under the ECHR; when these are interpreted by the monitoring organs of the Convention, such interpretations need to be taken into account, as they indicate how the Convention organs view the content of the relevant obligations. This does not mean, however, that such interpretations are correct or that they will stand: it is up to the States parties to indicate that another interpretation is the correct one, should they be able to agree that this is the case. In lack of such agreement however, interpretation by Convention organs is a safe indicator as to the content of the relevant obligation. Common sense, much favoured by the Tories, would require that this be taken into consideration in interpreting Convention rights, lest the UK run afoul of its obligations and engage its international responsibility. So the paper is correct when it stresses, further down on p 5, the ‘legal fact’ that there is ‘no formal requirement for our Courts to treat the Strasbourg Court as creating legal precedent for the UK’ [under the ECHR], but the HRA does not establish such a formal requirement either. In fact the new Bill, as indicated on p 6, will simply not require UK courts to take ECtHR jurisprudence into account. But they may still of course do so, and that would be ‘common sense’, if they wish to avoid a breach of the UK’s international obligations.

‘The European Court of Human Rights is no longer be able to order a change in UK law and becomes an advisory body only’.

The European Court never ‘orders’ a change in UK law; much like domestic courts applying the Convention, it may determine that a particular law was not interpreted in the instance, or is incapable of being interpreted, in conformity with the obligations under the Convention. The latter, more serious, finding means that the law in question will need to change simply because otherwise the State will be constantly in breach of its obligations under the Convention. But the European Court of Human Rights will not say how the law should change: the State retains its discretion to bring the law in conformity with its international obligations in whatever way it finds appropriate. This is the position under international law, and it will not change by repealing the HRA and replacing it with a ‘British Bill or Rights’. It will only change, again, if the UK withdraws from the European Convention and thus is no longer bound by it.

On p 6 of the paper it is indicated that the new Bill will provide that any ‘judgement that UK law is incompatible with the Convention … will only be binding in UK law if Parliament agrees that it should be enacted as such’. Even though this sentence implies otherwise, this is pretty much the position under UK law now: no ECtHR decision has automatic force of law in the UK, but rather any change in law must go through Parliament (see ss 4 and 10 HRA). But, at any rate, this is irrelevant from an international law perspective. What matters is that the UK comply with its international obligations under the ECHR, including the international obligation to comply with an ECtHR decision against it. How it will do so is the UK’s problem.

As to whether the ECtHR can be turned, by virtue of Tory proposed legislation, into an ‘advisory body’ only, well, it cannot. It should be clear that the UK cannot unilaterally change the content of international obligations that it has assumed (see Art 46 ECHR and cf Art 27 VCLT). But this is another recurring theme in the Tory paper: the pretension that the UK can unilaterally, through the adoption of domestic legislation, change the content of its international obligations. This issue is taken up below on account of some further egregious examples.

b) Attempted Unilateral Change of the Content of International Obligations

The new legislation will further, according to the paper, mean that:

‘There is a proper balance between rights and responsibilities in UK law’.

I am baffled by what exactly this statement is supposed to mean. Balance needs to exist between rights. Not between rights and responsibilities, lest we start arguing that if you (allegedly?) don’t pay your taxes or if you commit a crime you should no longer be entitled to protection of your rights, such as the right not to be tortured or the right to a fair trial. The paper seeks to elaborate on this extraordinary statement further down on p 5 and on p 6: the new Bill, while incorporating the original text of the European Convention, will ‘[c]larify the Convention rights’ to reflect the ‘proper balance’ referred to above, so as to ‘ensure that they are applied in accordance with the original intentions for the Convention [ie those of the 1950s] and the mainstream understanding of these rights’ (emphasis added). One is left to wonder how exactly either the ‘original intentions’ or the ‘mainstream’ understanding of the rights will be established—let alone how they possibly square with one another. What will happen when whatever ‘mainstream’ understanding is established (however that may be) does not follow the ‘original intentions’ for the Convention (however established)? There is further commentary on the profoundly misguided approach to this ‘balance’ available here. From an international law perspective it suffices to stress that whatever clarifications you want to make and whatever balance you want to strike must be within the area of discretion allowed under the international obligations you have assumed—and as such any change in domestic law will not affect the position in international law unless the UK withdraws from the Convention.

Two further nonsensical objectives of the new Bill are indicated on pp 6 and 7: the first is that the new legislation will ‘[l]imit the use of human rights laws to the most serious cases’ (emphasis added), by which is meant that the new law will only be engaged in cases that ‘involve criminal law and the liberty of an individual, the right to property and similar serious matters’. Below that (what?) threshold ‘Convention rights will not be engaged, ensuring UK courts strike out trivial cases.’ Aside from the extreme vagueness of this ‘objective’, it is unclear what makes the right to property more important or serious than (presumably) the freedom of assembly or the freedom of expression or the right to a fair trial, which are not mentioned. It is also unclear how a ‘trivial’ case engaging the right to property will be set apart from a serious one relating to the right to privacy and family life (also not mentioned). Still, the point is that this would not change the international obligations of the UK under the ECHR, but would merely put it in breach of its international obligations.

The other is that the new Bill will ‘[l]imit the reach of human rights cases to the UK, so that British Armed forces [sic] overseas are not subject to persistent human rights claims that undermine their ability to do their job and keep us safe.’ Again, anything short of withdrawing from the Convention will not achieve that aim. The only thing that it will achieve is to impose on UK courts to misinterpret the Convention and thus put the UK in breach of its obligations under it.

III. Conclusion: Incompetence or Deception?

One is left to wonder whether the Conservatives are simply incompetent in matters of international law or are deliberately trying to mislead the public in the UK. None of the changes they propose will have any effect on the international plane other than putting the UK in breach of its international obligations and rendering it a pariah State that refuses to comply with what it has accepted as binding: the substantive rights in the ECHR and the ECtHR decisions against it. The last section of the Tory paper seems to acknowledge the fact, arguing that unless the Council of Europe accepts that the UK will unilaterally change the Convention’s content (which is simply not likely in the least), the UK will be ‘forced’ to withdraw. Even that withdrawal however will have limited impact in view of the EU Charter of Fundamental Rights, which is now binding EU law (and in relevant part mirrors the ECHR), and in view of the steps taken to have the EU accede to the ECHR in accordance with the Lisbon Treaty. How do the Conservatives deal with that? Simply with yet another thinly veiled threat at withdrawal, this time from the EU, should their ‘renegotiation’ plans not go, err, as planned. How did it ever come to this? Adam Wagner has suggested that the more egregious of these proposals will fail to go through Parliament even if the Tories win the next general election (in 2015) and that indeed much of this paper seems like some extraordinary trolling exercise. Let’s hope so—though this then will have taken trolling to a whole new level.

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Dimitrios Kourtis says

October 7, 2014

Dear professor,

Firstly, allow me to congratulate you on the thorough and illuminating analysis of the current Tory proposal vis-à-vis the ECtHR/ECHR which seems to me, and hopefully to all international lawyers, as a tasteless game between law and politics, paving the way to an axiomatic absurdum.

What really strikes me with both surprise and disappointment is that even the judiciary is trying –from time to time– to draw a pretty thin line between the domestic, international and European particles of the United Kingdom’s legal order, applying quite ambivalently concepts or activating safety mechanisms, for instance when addressing issues of the conflict of laws combined with HRL and/or EU Law considerations, that tend to reassure and safeguard the “uniquity” or “independence” of the internal system to the detriment of the assumed international responsibilities of the State.

On the other hand, we (i.e. continental lawyers) litigating either before the ECtHR, an arbitral tribunal or the CJEU, are under a necessity to address and handle issues pertaining to the trial in hand –more or less– in a common lawyer's “wig and collar”. Furthermore common law has –pro parte majore– contributed to the formation of international norms and concepts, especially within the field of procedural rules (i.e. adjudication procedure before ICts/Tribs, the institution of estoppel, an important part of the “law of international contracts” (beyond and within the VCLT), the plurality of international criminal procedural rules, or even the actual drafting techniques regarding international crimes and especially their mens rea –subjective dimension– not to disregard the so-called international rules of conflict, applied from time to time before international arbitral panels and other relevant fora). I believe tt was Sir Hersch Lauterpacht who opined that most common law principles form part of international law and Sir Robert Y. Jennings who stipulated that international lawyers have much to be taught by common lawyers, especially concerning precedent and the distinction between ratio decidendi and obiter dicta.

Since the contribution of both the UK and her legal system to the formation and enhancement of International Law (not to be forgotten that the latter was renamed and re-conceptualized by an Englishman, namely Jeremy Bentham dethroning Blackstone's, the father of english jurisprudence, "law of nations") appears a salient and solid datum, I wonder whether the current regression is to be interpreted only through the lens of a conservatist revisionism vis-à-vis an already excessively liberal international system (EU regime, ECHR regime and the like) or, on the other hand, we are bound to accept that there exists something fundamentally changing within the Albion’s socio-political and legal ambiance, and the pressing need to address the said “wind of change” forces the conservatists to their dearly held stance, namely isolationism and the internalization of individual freedoms, only to subject them to further pre-conditions and reservations, salve the all-inclusive right to property, whose sancrosanctity has been declared and recognised ad nauseam from the American independence to the epekeina of liberal and neo-liberal tradition.

filippo fontanelli says

October 7, 2014

Impeccable comment, Antonios. The bit on the EU Charter, however, is a bit misleading, surely for lack of elaboration. After a hypothetical withdrawal from the ECHR, the Charter can only assist in matters falling within the application of EU law: UK authorities and courts would be effectively unburdened by EU or ECHR fundamental rights obligations in all non-EU-related matters. EU's accession to the ECHR would not change a comma in this respect.

Antonios Tzanakopoulos says

October 8, 2014

Hi Filippo, you are absolutely right and indeed the Tories make the same point in their paper--which is why, in the interest of saving space, I did not mention it since I have linked the short paper (though perhaps it would have been better to include a further reference for the avoidance of confusion).