Merris Amos (Reader in Human Rights Law, Queen Mary University of London) written evidence

Introduction

Thank you for the invitation to make a written submission of evidence to your Commission on Conservatism and Human Rights. My expertise equips me to offer evidence on one key aspect of your inquiry, the proposed British Bill of Rights and the European Convention on Human Rights. I have set out my observations on these questions below. Please do not hesitate to contact me should you wish any further information or explanation on these issues.

Should we keep the Human Rights Act and why?

It is very important that we keep the essential elements of the Human Rights Act 1998 (HRA) in any future Bill of Rights. In order for our system of human rights protection to remain compatible with what is required by our membership of the European Convention on Human Rights (ECHR), we have to maintain national human rights law at or above this level. However, there is room for improvement as I have discussed in the section concerning the British Bill of Rights.

The HRA guarantees are important not only to our international reputation but since 2000 have also led to vast positive changes at the national level across a variety of different areas of law, policy and practice. An overarching impact is the way that the Convention rights given effect by the HRA force government, Parliament and other primary decision makers to justify their decisions which have implications for the Convention rights. This is a crucial encouragement towards evidenced based policy making.

By way of a summary of the impact, I have highlighted some important changes as a result of each of the Convention rights:

  • Article 2 (right to life): improved investigations into deaths, positive duty on police to act where risk to life.
  • Article 3 (freedom from torture): positive duty on police to investigate allegations of Article 3 breach, duty not to deport or extradite where real risk of Article 3 ill treatment.
  • Article 5 (liberty): limits on control orders, speeding up release from prison where delay due to inadequate resources, oral hearings before Parole Boards.
  • Article 6 (fair trial): disclosure of allegations in control order proceedings, reasonable time requirement in legal proceedings, improved independence and impartiality test.
  • Article 8 (private life): duty on media to respect private life balanced against freedom of expression, DNA databases and other databases now restricted, autonomy in end of life decisions.
  • Article 8 (family life): overarching duty to ensure interferences with family life are proportionate, state support to keep families together, impact on immigration – now tempered by changes in Immigration Act 2014.
  • Article 8 (home): eviction must be proportionate – consider the facts.
  • Article 9 (religion): interferences with manifestations of belief in the workplace must be proportionate, equality law trumps manifestations of belief.
  • Article 10 (expression): protection for public interest expression and responsible journalism.
  • Article 14 (discrimination): Belmarsh judgment, impact on welfare reforms – bedroom tax, benefit cap.
  • Article 1 Protocol 1 (property): ensuring confiscation orders are proportionate.

How important is it that Britain remains a signatory of the European Convention on Human Rights and why?

It is vitally important that Britain remains a signatory of the European Convention on Human Rights (ECHR). Our membership has value at three levels: national, global, and individual.

At the national level, first are the values which can be grouped together as “static” where the European Court of Human Rights (ECtHR) operates as a safety net against national acts incompatible with the ECHR. Its mere existence is a disincentive for national institutions, particularly governments, to act incompatibly with the ECHR. Where such incompatible acts occur, the ECtHR can hold the national institutions to account and prompt a reversal or modification of incompatible acts to ensure compatibility with the ECHR. Second, are the values which can be grouped together as “dynamic” where a judgment of the ECtHR prompts the improvement of existing laws, policies or practices to ensure compliance with the ECHR or might even prompt entirely new laws, policies or practices in a particular area. There are a number of examples including: modification of the DNA database; lifting of the ban on homosexuality in the armed forces; and improved investigations into deaths.

At the global level, research reveals that the work of the ECtHR raises the level of human rights protection for all countries, not just Contracting States. The ECtHR helps to set minimum standards across the 47 Contracting States of the Council of Europe as well as, indirectly, the 28 EU Member States. The UK has a much better chance of dealing with like-minded States and has an external and neutral reference point, the ECHR as enforced by the ECtHR, which can be appealed to rather than national guarantees or national perspectives. The ECtHR has also played a role in scrutinising the actions of other international organisations such as the European Union, the Court of Justice of the European Union, the United Nations and the International Criminal Court. If a Contracting State such as the UK were to leave the system, it might collapse, or be considerably weakened as a result. Furthermore, the UK would find it increasingly difficult to persuade other States to abide by international human rights norms were it not to do so itself and it would lose its ability, through our courts, to influence the development of Convention jurisprudence for all Contracting States.

 Finally, at the individual level, the individual justice model utilised by the ECtHR enables victims, once domestic remedies have been exhausted, to bring their application to the ECtHR to argue that their Convention rights have been breached. Whilst this may be an option very far from the minds of most people of the UK, it is an option which remains available. Victims are able to determine for themselves whether or not they want to complain and thereby the gaps in national human rights protection are filled with the ECtHR acting as an impartial and independent adjudicator.

Assuming that a British Bill of Rights will replace the Human Rights Act, what should this new Bill contain?

As noted above, as a minimum the British Bill of Rights must contain all of the essential guarantees of the HRA. However, there is also room for improvement, not only to the substance of the guarantees but also to the climate of respect surrounding any new Bill of Rights.

Knowledge about the HRA remains poor – those how need to know about it, including public authorities, do not know enough. Opinion polls consistently demonstrate strong support for human rights law, but not the HRA. However, since the Government took office with plans to “scrap” the HRA, support and campaigns for it have greatly increased public knowledge. If there is to be a Bill of Rights, the human rights culture must be improved by devoting funds to education and training in the field rather than cutting the budget of the Equality and Human Rights Commission

There is also still a problem of respect for the HRA throughout elements of the media (The Daily Mail, The Telegraph, The Sun) and in government as well. This is not a new problem although the dynamics have shifted since the Government promised to “scrap” the Act in 2015. There is a need for leadership on human rights. I am not sure this will come instantly from the passage of a British Bill of Rights as given the changes made will likely be minimal, and the UK will remain a part of the ECHR, it will only take one judgment which the government disagrees with for the cycle of disrespect to start over again. To build proper respect for a Bill of Rights, there needs to be a serious process with sufficient resources to draft it. If government ministers were to refrain from constant attacks on the legal framework, this would be a positive first step.

Other reforms concern the substantive features of the framework. The HRA only gives effect to a limited and outdated range of civil and political rights – a very poor list when compared to that contained in the EU Charter of Fundamental Rights. The absence of economic, social and cultural rights present the most serious problem – such rights can galvanise popular support for a Bill of Rights and might include: an adequate standard of living; highest attainable standard of health; housing; sustainable environment; social security; and a freestanding right to equality.

The section 4 declaration of incompatibility, whilst suited to the UK’s present constitutional arrangements, is not considered by the ECtHR to be an effective remedy because it is not binding and does not impose a duty to amend the offending legislation. Should a similar remedy be included in a Bill of Rights, a timetable for action on declarations must also be included. I would also expand the section 7 victim test to allow for test cases (in addition to the role of the Equality and Human Rights Commission) which is very important during a time of limits on legal aid and access to justice. The definition of public authority must also be clarified to ensure that public functions contracted to the private sector are still caught by human rights law.

Changes to the relationship between UK courts and the ECtHR are, in my view, not really necessary given that the UK courts, finding more confidence, are moving beyond the strict Ullah adherence to ECtHR jurisprudence and finding room for dialogue

  • telling the ECtHR when it is wrong and opening up the scope for the UK margin of appreciation.

it is not necessary to remove section 3 of the HRA – this is an innocuous section which allows the courts to correct minor issues with legislation rather than having to make a declaration of incompatibility and returning the matter to Parliament. There is no evidence that it has usurped parliamentary sovereignty or been utilised irresponsibly. I can provide further research on this question if desired.

 

It is not necessary to include a seriousness threshold – it is not clear what this would add to existing barriers to bringing a human rights claim before a court, and a definition of seriousness would be difficult to arrive at. There is a danger that “non- serious” claims would be considered to be the claims of prisoners, those subject to immigration control and those caught up in the criminal justice system. There is also a danger that questions of seriousness would be confused with questions about a claimant having not fulfilled “responsibilities”.

It is not necessary to remove extra-territorial effect – ECtHR jurisprudence, as implemented by UK courts, currently provides that the ECHR applies abroad where a Contracting State has effective control of an area or is exercising state authority. This has meant that a number of claims have been brought by Iraqi civilians concerning the actions of British armed forces when in Iraq. To reverse this aspect of ECtHR will place the UK in direct breach of the ECHR and mean that this sort of claim will be brought straight to the ECtHR rather than UK courts. This will increase the number of violations of the ECHR by the UK before the Court, and lead to one more longstanding non- resolved violation alongside prisoner voting. The better approach would be training and guidance to avoid breaches in the first place. Or to derogate from the ECHR, in particular Article 5, where this is in accordance with Article 15 of the ECHR.

It is not necessary to limit the damages to be awarded - Section 8 of the HRA, which controls the award of damages for the breach of human rights, is one of the most detailed sections of the HRA. There are actually very few damages awards made by courts utilising this power and those awards which have been made are very modest. For example, £5,000 was awarded where a woman established that police had failed under Article 3 to investigate her claim that she was being held unlawfully in domestic servitude. £10,000 was awarded to a woman who had established that hospital staff had allowed her seriously ill mother to escape and commit suicide. Damages awards by the ECtHR, whilst slightly higher, are also fairly modest. The HRA is not known as having created a “compensation culture”. Imposing a limit might encourage lower settlement awards – the amount agreed in compensation so that the claim does not end up in court. But limiting damages will have little impact on the cost of inquiries ordered where this is found by a court to be necessary to comply with Article 2 (the right to life) or Article 3 (torture, inhuman or degrading treatment or punishment). As noted above, a far better cost saving strategy would be to improve training to avert breaches of human rights in the first place.

Limiting the amount of damages to be awarded will also have the effect of increasing the number of applications against the UK to the ECtHR. An applicant loses his or her victim status before the Court if he or she has already brought the same claim at the national level and received adequate redress. A low damages award may not be regarded by the ECtHR as adequate. Similarly, the ECtHR will not accept an application where the victim has failed to exhaust domestic remedies. A Bill of Rights claim resulting in a low or capped damages award will not be considered an effective remedy thereby allowing the application to proceed although the substance has already been considered at the national level. Currently very few violations on the part of the UK are found by the ECtHR. It would be ludicrous to return to the bad old days of 40 applications considered by the ECtHR and violations found in 30 as happened in 2002.

Glosses on particular rights must not be included – this risks usurping judicial independence and precluding proper consideration of the balancing requiring by qualified rights. It may also lead to the ECtHR finding a breach of that right and a breach of Article 13 given the way that the right is implemented in national law. In combination with many of the other proposed changes, this may have the impact in practice of reducing human rights protection for particular groups such as those subject to immigration control. There are already examples of this in practice – Part V Immigration Act 2014 and Immigration Rules 2012 which provide, in short, that only in exceptional circumstances will public interest in deportation of convicted offender be outweighed by other circumstances. The Court of Appeal in Suckoo [2016] EWCA Civ 39 held that the rules must be followed but the issue is currently on appeal to Supreme Court.