The UK government intends to replace the Human Rights Act with a new ‘British bill of rights’. However, any change to existing human rights law promises to be a complex and difficult project. On March 7 Dr Jeff King, Senior Lecturer at UCL Faculty of Law, explored the current state of play and considered the past, present and future of the HRA. Laëtitia Nakache reports.
After the 2015 general election David Cameron said that the repeal of Human Rights Act (HRA) would be brought forward rapidly. The Conservative party had pledged in their 2015 manifesto to abolish the HRA and replace it with a British bill of rights, in order to ‘break the formal link between British courts and the European Court of Human Rights, and make our [the UK] Supreme Court the ultimate arbiter of human rights matters in the UK.’ Since then the government’s plan to scrap the HRA has been delayed a number of times, with the consultation on the proposed British bill of rights now not expected to be published until after the EU referendum. In this political climate, Dr Jeff King came to the Constitution Unit on March 7 to discuss the past, present and future of human rights law in the UK.
The past: genesis, aims and impact of the HRA
The United Kingdom acceded to the European Convention of Human Rights (ECHR) in March 1951. Though it was obliged under Article 46 to give effect to judgments of the European Court of Human Rights (ECtHR), it was not until the 1960s that British citizens were able to bring claims in the Strasbourg court. Since then, the evolution of the UK law has been influenced by the Strasbourg jurisprudence and by 1998 a broad political consensus existed that UK involvement in the Strasbourg system was politically desirable.
The HRA received royal assent in November 1998, and (mostly) came into force in October 2000. It was introduced for the stated purpose of securing better enforcement of ECHR rights within UK law. The HRA incorporated into UK law the rights contained in the ECHR and made a remedy for breach of Convention rights available in the UK courts, without the need to go to the ECtHR. Many supporters of the Act also viewed it as a mechanism for plugging gaps in the UK’s hitherto rather limited, mostly common law-based, system of rights protection.
The HRA was meant to compensate for two unjust states of affairs. Firstly, there were serious procedural problems for the citizens in the UK. ‘It [took] on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it [cost] an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.’ (Home Office, Rights Brought Home: The Human Rights Bill). Secondly, there was a belief that allowing UK judges to apply the Convention would introduce a culture of rights in the UK.
Dr King argued that the academic debate regarding the impact of the HRA is generally between three different groups. The first thinks that it has had no real impact; the second group considers that it is a regrettable departure from constitutional orthodoxy — a retreat from the idea that parliament should be sovereign; the third group, which is the most dominant view, thinks that the HRA is not perfect or revolutionary but has had some positive impact and is a worthwhile if not substantial improvement of the legal protection of human rights in the UK.
To understand the impact of the HRA on government and administration, Dr King referred to the report of the Human Rights Inquiry, conducted by the Equality and Human Rights Commission and published in June 2009. This study underlines that ‘engagement with human rights has clear benefits for public services’. It assesses that the HRA has been taken seriously by the administration, including the NHS and the police force for example. While the results may be disputed, no empirical study of comparable or even any modest scope has suggested otherwise.
Dr King argued that the HRA has had slightly ambiguous consequences for UK courts. When the HRA had been passed, the first concern was that the UK courts would be swamped by cases. Evidence points in varying directions here. According to Varda Bondy’s early study, The Impact of the Human Rights Act on Judicial review : An empirical Study, ‘there is little evidence that the introduction of the Human Rights Act has led to a significant increase in the use of the judicial review’. In fact the HRA has not led to a major increase in judicial review success as it is most often being used to supplement established grounds for judicial review in cases that would have been pursued in any event prior to the introduction of the HRA. Adding important nuance to this conclusion, in The Impact of the Human Rights Act on the House of Lords, Sangeeta Shah and Thomas Poole underlined the low win rate for human rights cases. Only one in three of these cases win in the House of Lords (today, the Supreme Court). ‘It seems that while the Lords are more willing to hear human rights cases than other types of case, they are more inclined to dismiss them than the other cases they hear’. Yet the data presented by Shah and Poole show that the caseload of the Supreme Court has shifted substantially towards hearing human rights cases in the first ten years of its introduction.
From a different perspective, the impact of the HRA regime of judicial rights review on parliament has been fairly light. If we look at the number of declarations of incompatibility, the rate is quite low in the UK in comparison to France, Canada or Germany.
This means that parliamentary business is disrupted very infrequently by the need to respond to judicially declarations of incompatibility under the HRA. The major disruption occurred after the famous Belmarsh Prisoners case (A and others v Secretary of State for the Home Deparatment  UKHL 56) which led to the introduction of the Prevention of Terrorism Act 2005 in short order. The main complaint in parliament at the time was that it was unduly rushed through. As to substance, King argues that most changes created by judicial review of legislation under section 4 have been considered low profile in parliament. There have been very few references to the decisions of the UK courts under the Human Rights Act 1998 (a quite different attitude prevails vis a vis the Strasbourg Court).
The present: controversy around the HRA
From the mid-2000s onwards, the HRA became increasingly controversial. Initially criticisms focused upon the Act itself — but soon the ECtHR became the target of attacks. The Strasbourg court has been accused of placing too much importance on European affairs, in a way not foreseen when the Convention was adopted (Lord Sumption, for instance, argues that it was initially viewed as a ‘charter against despotism’ and not as a ‘bill of rights for Europe’). This alleged stretching of the functions has been a significant concern. The court has also been accused of being too ‘activist’. This led in 2012 to the adoption by a conference of the Committee of Ministers of the Council of Europe of the Brighton Declaration. It was an attempt to ensure, while generally affirming the ECHR’s role, that the principle of subsidiarity was reflected in the ECtHR system (see Part B of the Declaration).
The sources of controversy are multiple. Firstly, the media has often portrayed the ECHR as an unfair tool providing too much protection to terrorists and making judicial proceedings ineffective. Secondly, sections 3 and 4 (duty to interpret in a compatible way and the declaration of incompatibility) have been seen as affecting the legislative supremacy of parliament. Thirdly, section 2 (the duty of national courts to ‘take into account’ the decisions of the Strasbourg court) is sometimes perceived as making the Strasbourg court dominant over the UK courts. In fact, that the Courts have to ‘take into account’ ECtHR jurisprudence does not necessarily mean they must follow every decision adopted by the European court. Dr King referred to the judgment of Lord Neuberger in Manchester City Council v Pinnock that ‘the Court is not bound to follow every decision of the European Court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European Court which is of value to the development of Convention law’. The final source of controversy is the concept of the ‘living instrument’, or ‘living tree’ or ‘evolutive interpretation.’ It is an approach to interpretation adopted by the Strasbourg court which enables it to interpret the Convention in the light of present day conditions and therefore reflect changing social attitudes and changes in the circumstances of society. Dr King argued that while his mode of interpretation is controversial for some, it is widespread throughout the world to the point that its main competing doctrine of interpretation, ‘originalism’, is considered by most legal scholars to be a peculiar feature of the American neo-conservative right and its representatives on the bench and in the academy.
The future: the Conservative Party proposals
In the final part of the talk Dr King spoke about the Conservative Party’s proposals, which appear in their report ‘Protecting Human Rights in the UK. The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’.
The main objective of the proposals is to ‘to break the formal link with the European Court of Strasbourg’. For Dr King withdrawal from the ECHR is not realistic, even if in theory it is on the table as a ‘nuclear option’. In his opinion ‘there is no plan to take the UK out of the Convention, but if they can’t negotiate a satisfactory relationship they are intimating that this is what will happen’.
There are a few possible options for reform which would enable the UK to remain in the ECHR: To cancel any section 2 duty to have regard to Strasbourg jurisprudence; to weaken the section 3 duty to intepret legislation so far as possible in a way compatible with the rights laid down in the ECHR, such that it adds little to the common law obligation; to remove the section 4 power to issue declarations of incompatibility and follow the New Zealand or Australian model; to restrict the application of the British bill of rights to private parties by not including the power under section 6 of the HRA to apply rights protection against institutions ‘performing functions of public nature’; to ‘rebalance’ rights by tinkering with the language to emphasise responsibilities; to limit territorial scope to the UK; to restrict subject-matter to ‘the most serious cases’.
Dr King chose to concentrate his critique on the first proposal – that is, the removal of section 2. He argued that breaking the ‘formal link’ would be counterproductive. ‘If the aim is to prevent the influence of Strasbourg Court judges over UK domestic politics, it would be a foolish thing to deprive the Strasbourg Court of the reasoning of the UK judges’, he said. The chances of success for the UK in Strasbourg are greater if UK judges scrutinise the state’s arguments in UK courts, with Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. In the past the Strasbourg court has not only adopted the reasoning of the UK courts, but in doing so it has explicitly rowed back from its own jurisprudence. The decision Animal Defenders International v The United Kingdom by the ECtHR is a very good illustration, and other preliminary research suggests the effect of UK court consideration is substantial on Strasbourg judgments. A British bill of rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue. Indeed, there is a general decline in the number of adverse judgments of the ECtHR against the UK and a trend towards the Strasbourg court using the reasoning of UK judges in its decisions. The chart below, drawing from data on adverse judgments collated by Dr Alice Donald from ECtHR annual reports, demonstrates a pronounced downward trend. While further research is required to establish any causation, the trend is consistent with the point made here as well as by judges of the ECtHR. Therefore, on the evidence seen so far, the repeal of section 2 would be irrational given the Conservative Party’s current aims.
About the speaker
Dr Jeff King is a Senior Lecturer in the Faculty of Laws at UCL.
About the author
Laëtitia Nakache was a Research Volunteer at the Constitution Unit from January to April 2016.