Towards a British Bill of Rights?
The Human Rights Act 1998 (HRA) was one of the flagship constitutional reforms of the New Labour era. It brought the principles of the European Convention on Human Rights (ECHR) into domestic law as never before and has had far-reaching implications across many sectors of British society.
In 2015, a Conservative government was elected with a manifesto pledge to repeal the Human Rights Act and replace it with a ‘British Bill of Rights’. There exists much uncertainty about what the new legislation would look like and even whether the Government will muster the parliamentary arithmetic to drive through the changes.
However, it is worth summarising the key provisions of the 1998 Act, what key areas of reform are being sought and could be reflected in the new law, as well as whether repealing the HRA would require departing the Council of Europe entirely.
What does the Human Rights Act do?
The HRA does not incorporate the ECHR into UK law but rather allows for cases involving alleged violations of Human Rights to be heard in UK courts, with the more costly and less accessible option of the Strasbourg court now acting as a final court of appeal.
Section 6 of the Act has been perhaps the most consequential provision, as it mandates that public bodies in the UK must not act in any way that is a breach of the Convention. This includes government departments, the police, prisons, health-providers, local authorities, and private bodies with public connections (for instance, those that receive some public funds). Parliament is excluded from this though, and is not curbed by the legislation.
Section 3 of the Act states however that all legislation must be interpreted in a way that is compliant with Convention rights. When a UK court finds an Act of Parliament or subordinate legislation to be contrary to upholding Human Rights, it may issue a Declaration of Incompatibility, which urges Parliament to remedy the law, though parliament is not bound to follow it.
What are Britain’s international obligations?
Britain has been a signatory to the ECHR and a member of the Council of Europe since the 1950s. Today, 47 countries are in the Council, including some outside the traditional European fold such as Russia and Azerbaijan. Most senior government figures advocating repeal of the HRA do not favour leaving the Council altogether. Therefore, a departure is an unlikely scenario.
The Council does not demand member states have an ‘enabling’ legislation like the HRA in place, and Germany for instance does not have such a domestic law. Furthermore, they cannot compel a member state to abide by their court’s rulings, and in practice many countries choose not to do so.
What are the key criticisms of the current law?
To gain an idea of what a British Bill of Rights may look like, it is important to understand the issue some have taken over the present law. Many view the current legislation as a ‘criminal’s charter’, and that judges in Strasbourg (and increasingly in the UK) are practising a form of ‘judicial activism’ almost like the US Supreme Court, ruling on issues that ought to be decided by national parliaments, such as prisoner voting rights.
The doctrines of margin of appreciation (allowing for human rights to be interpreted with respect to national traditions) and proportionality (allowing for possible human rights violations to occur if pursued for a legitimate aim, such as to deter terrorism) are already used by Strasbourg. However, it is argued that these doctrines do not go far enough to preserve the rule of law. Some have even suggested that the ECHR neglects age-old British common law rights in its judgements, such as the right to jury trial, in favour of ideals that are more accepted elsewhere in Europe.
So what might a British Bill of Rights look like?
In short, current government ministers have said that human rights as they are currently protected in UK law would be largely preserved. Only the legislation they are contained in would change. Ending the right of appeal to the Strasbourg Court would likely not be possible whilst remaining within the Council of Europe, and this remains a highly unlikely outcome.
The current rights, to life, free speech, liberty, free expression, freedom from torture and servitude, religious freedom etc. are highly unlikely to disappear.
An end to the binding nature of ECHR judgements on UK courts could be legislated for. However, there is little to suggest that judges in the UK would be dissimilarly minded to Strasbourg judges in deciding many ECHR cases. Also, court decisions from other jurisdictions are already ‘persuasive’ authority in our courts; therefore, ECHR jurisprudence could not be legislated out of existence in the UK.
As to whether or not current obligations on public authorities would change, this has yet to be commented on. However, one key problem in the law presently is that ‘public body’ is not very well defined and a grey area exists over private bodies that perform public functions. This definition may be subject to change and businesses should keep themselves informed on future developments in this area.
What are the other constitutional implications of abolishing the HRA?
Compliance with the ECHR is a prerequisite of EU membership. However, as the UK is set to leave in the next few years, this is not an issue.
The Scottish devolution settlement contains distinct human rights provisions for Scotland. For instance, in Scotland, unlike at Westminster, legislation which breaches human rights may be struck down by the Scottish courts. The situation may not be as complicated as some have made out. Schedule 5 Section 7 of the Scotland Act states that “observing and implementing…obligations under the Human Rights Convention” are NOT reserved, and so the Scottish Parliament is empowered to pass its own legislation to protect human rights, if it felt that the new UK-wide legislation was not appropriate.
The situation in Northern Ireland is less predictable, with the Blair government’s commitment to human rights in 1998 being one of the underpinning factors behind the Good Friday peace agreement. However, it is possible that any new legislation could receive the input of the Northern Ireland administration to ensure any concerns.
From what has been disclosed so far about the Conservatives’ plans to repeal the HRA, if this does occur, it is unlikely that we should be braced for great change. It appears that much of the essence of the 1998 Act will be retained. When the consultation opens for the British Bill of Rights, it is recommended that public or private bodies convey any difficulties or confusions they have found regarding the current law (there are legitimate problems of wording etc. as we have shown), as this is the opportunity to remedy it.