In 1998, the Human Rights Act (HRA) was passed to incorporate the European Convention on Human Rights (ECHR) into domestic law. Since then, it has been demonised by centre-right voices, despite the ECHR being fundamentally British in origin, spirit, and drafting.
After the Second World War, Winston Churchill called for “a Charter of Human Rights… sustained by law”. The UK then ratified the ECHR after a British Conservative proved instrumental to its creation. Access to justice, however, was stunted, since applicants could not secure ECHR rights before British courts. When cases therefore reached Strasbourg, European Court of Human Rights judges could not benefit from our judges’ interpretation of the ECHR. With ‘Rights Brought Home’, the HRA obviated the need for applicants to spend such time and money pleading before Strasbourg, as they could invoke ECHR rights before domestic courts instead. It too allowed British judges to transform ECtHR case-law, with the UK only losing 1.4-2% of cases and a former ECtHR President commenting that Strasbourg frequently follows UK courts.
Since then, the two principal charges levied at the HRA have been that it disproportionately benefits criminals and tramples over parliamentary sovereignty. The Court often allows the removal of dangerous individuals, though occasionally objects on torture grounds. Even without the ECtHR, UK law is subject to long-standing international obligations and takes a historically dim view of evidence obtained by torture. Many cases are simply misrepresented. Despite media allusions, the ECtHR has not demanded that all prisoners have the right to vote, with minimal proposed change since satisfying the Council.
Many underreported ECtHR cases have improved lives. It was thanks to the ECtHR that the public learnt the truth of the Thalidomide scandal, that Mid Staffordshire victims won a proper investigation, and that Hillsborough families secured an inquest into the circumstances of their relatives’ deaths. The ECtHR has also protected soldiers supplied with inadequate equipment, advanced LGBT rights Europe-wide, and condemned corporal punishment. This perhaps explains why HRA consultations show public support. Moreover, the HRA obliges Ministers to declare if a Bill is ECHR-compliant. This, along with the obligation on public authorities to respect ECHR rights, serves as an immediate cautionary check against the ECHR. Thereafter, the Court’s jurisdiction serves as an ‘insurance policy’ guaranteeing fundamental rights.
Section 2 of the HRA instructs our courts to take account of Strasbourg judgments, following practice whereby courts already consider international cases. British judges are able and willing to depart from ECtHR decisions. Section 3 obliges courts to read legislation in line with ECHR rights. If this cannot be done, judges can declare that domestic law is incompatible with the ECHR, but do so rarely. Parliament can decline the opportunity to reconsider legislation deemed incompatible, but risks adverse ECtHR findings. This is, however, not the same as suggesting the HRA is capable of annulling legislation. Parliament is only constrained insofar as it chooses to honour international legal obligations. Whilst ECtHR applicants must first exhaust domestic remedies and most applications are inadmissible, Britain has comparativelyfew applications per year, indicating that the obligation on public authorities to respect ECHR rights avoids litigation by elevating human rights considerations within decision-making processes.
Some, however, accuse Strasbourg of overreaching when interpreting the ECHR. The Court views the ECHR as a ‘living instrument’ considered in light of the times. Liberty point out that the ECHR was drafted with “homosexuality…still illegal [and] discrimination against illegitimate children… still legal” in many nations, with “the internet, IVF [and] DNA profiling” also unforeseen. If treaty interpretation did not evolve, despite statutory and common law interpretation doing so, international law would be rendered obsolete. We must, however, acknowledge gaps between common law and the HRA, with legislation prevailing over the former. As the Equality and Human Rights Commission note, the HRA obliges respect of ECHR rights but also positively mandates the State to secure them. In contrast to common law, the Act imposed a duty on the Police to take steps to protect life when an individual is at risk. In our unwritten constitution, the ECHR is an important safeguard when common law or statute is found wanting.
Abolishing the HRA but remaining in the ECHR would take Britain back in time when applicants could only plead before Strasbourg, depriving individuals of access to justice and British judges of influence. There is no consensus concerning the content of a British Bill of Rights, particularly on socio-economic questions, whilst divergence with the ECHR could prompt Strasbourg’s intervention. If a Bill clarified judicial interpretation, it would be cosmetic since the ECHR considers the public interest when balancing qualified rights and Parliament has passed such interpretative guidance. Others have questioned whether it would allow courts to strike down offending legislation, a more radical treatment of parliamentary sovereignty than the HRA permits. If the rights were not invocable before the courts, a hollow skeleton of principles would pale into insignificance compared to the ECHR. Procedurally and substantively, replacing the HRA with a Bill of Rights would likely weaken human rights protection.
The ECHR is also woven into UK devolution settlements and, crucially, the Good Friday Agreement for meaningful guarantees of equality and non-discrimination amongst communities. Mark Elliot points out that ECHR withdrawal would alter devolved competences; triggering the convention that devolved assemblies must accept such changes. It is, however, inconceivable that Holyrood would consent. While Westminster could plough on, it is unthinkable given that it would embolden Scottish nationalists. The repeal of the HRA therefore raises uncomfortable constitutional questions to which the answers have proved unsatisfactory.
The call for a British Bill of Rights carries a certain irony since the ECHR is precisely that already. The HRA and the ECHR protect individual liberty, enhance British influence, and provide common values binding the UK. Presented with potential ECHR withdrawal, Lord Bingham asked which rights should be discarded and whether we would prefer to live in a country where such rights were unprotected. Until we have detailed answers to both questions, we should continue to be thankful to live in a country where judges are occasional irritants to politicians, rather than faithful puppets.
Tom Chapman is a Bright Blue Member, a former Conservative Councillor who now works in the European Parliament. The views expressed in this article are those of the author, not those of any other person or institution and not necessarily those of Bright Blue.