Now that the tumult and the shouting have died and the captains and the kings have departed (or, at least, gone quiet for three or four years before the next round of electioneering) we are left with a Government whose constant theme during the previous Parliament was dissatisfaction with the European Convention of Human Rights and the Human Rights Act 1998. It was impossible for the Conservatives to repeal the HRA 1998 in the last Parliament and replace it with what they kept describing as a “British Bill of Rights” because the Liberal Democrats in the coalition would never have agreed to it. But now there is a Conservative Government with an absolute majority, where might we go from here?
Various points arise:
- The Government can dismantle the HRA if it wishes (and I imagine it most probably will do so); but there were human rights before the HRA and there will no doubt be human rights after it. What the HRA did, in effect, was to make Convention rights justiciable in the domestic courts.
- I suspect that the UK courts will continue to keep a very careful eye on Strasbourg jurisprudence. At the moment they are required to “take into account” the judgments, decisions, declarations or advisory opinions of the Court and my guess is that they’d go on doing that even if the HRA were repealed. So long as we remain a party to the ECHR, even if the Convention were no longer directly justiciable would the UK courts really want to hand down a judgment that conflicted directly with, for example, a unanimous opinion of the Grand Chamber?
- As umpteen academic commentators have pointed out (myself included), the ECHR is, in effect, part of European Union law and, in any case, the EU’s own Charter of Fundamental Rights sets out very much the same rights as the ECHR does. Therefore, so long as we remain a member of the EU it’s difficult to believe that leaving the Council of Europe and resiling from the ECHR would have any enormous practical effect – even if the Government were prepared to risk the international opprobrium that would follow from withdrawal.
- Concerns have been raised as to whether the Westminster Government can in any case withdraw unilaterally from the ECHR on behalf of the United Kingdom as a whole or repeal HRA 1998 without a legislative consent resolution of the Scottish Parliament agreeing to the application of any such legislation to Scotland – on which point, see Aileen McHarg at UKHRB: Will devolution scupper Conservative plans for a “British” Bill of Rights?, Chris McCorkindale on the Scottish Constitutional Futures Forum: Echo Chamber: the 2015 General Election at Holyrood – a word on Sewel, Mark Elliott on Public Law for Everyone: Could the Devolved Nations Block Repeal of the Human Rights Act and the Enactment of a New Bill of Rights? and Bob Morris on the UCL Constitution Unit Blog: Will plans for a British bill of rights be reduced to a bill for England only?
- (And by the way, fellow-pedants, it’s “Sewel”, not “Sewell”.)
The framework for the relationship between the European Union and the Council of Europe is defined in the EU-Council of Europe Memorandum of Understanding concluded in 2007. It confirms that the Council of Europe is the benchmark in Europe for human rights, the rule of law and democracy. The Memorandum also underlines the need for coherence between the legal norms of both organisations in the field of human rights:
“Human rights and fundamental freedoms
16. The Council of Europe and the European Union will base their co-operation on the principles of indivisibility and universality of human rights, respect for the standards set out in this field by the fundamental texts of the United Nations and the Council of Europe, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, and the preservation of the cohesion of the human rights protection system in Europe.
17. The European Union regards the Council of Europe as the Europe-wide reference source for human rights. In this context, the relevant Council of Europe norms will be cited as a reference in European Union documents. The decisions and conclusions of its monitoring structures will be taken into account by the European Union institutions where relevant. The European Union will develop co-operation and consultations with the Commissioner for Human Rights with regard to human rights.
18. While preparing new initiatives in this field, the Council of Europe and the European Union institutions will draw on their respective expertise as appropriate through consultations.
19. In the field of human rights and fundamental freedoms, coherence of Community and European Union law with the relevant conventions of the Council of Europe will be ensured. This does not prevent Community and European Union law from providing more extensive protection.
20. Early accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms would contribute greatly to coherence in the field of human rights in Europe. The Council of Europe and the European Union will examine this further.”
EU accession to the ECHR has, of course, stalled as a result of the adverse ruling by the Court of Justice of the European Union in Opinion 2/13 of 18 December 2014. But the fact that the institutional accession of the EU as a corporate entity is in doubt does not, of itself, invalidate the other terms of the EU-CoE Memorandum; and the question remains as to whether it is possible to be a member of the European Union without, at the same time, being a member of the Council of Europe.
The relevance of all this for law & religion should not require a mention; but just in case any reader is in the slightest doubt, I would assert that the protections for freedom of thought, conscience and religion under Article 9 ECHR and Article 10 CFR are of far more practical value than (eg) Article 18 UDHR – and rather more reassuring than the essentially non-interventionist stance of the common law: that what is not forbidden is permitted on the basis that “every citizen has a right to do what he likes, unless restrained by the common law … or by statute”: per Lord Donaldson MR in Attorney General v Guardian Newspapers Ltd (No.2)  UKHL 6:  1 AC 109 at 178.
Whether or not withdrawal from the CoE would trigger departure from the EU remains to be seen; but, that said, there are a lot of people on the Tory Right who would leave the EU tomorrow given even half a chance and, consciously or unconsciously, they might be linking the two issues. However, it is not at all clear, to me at least, that David Cameron really does want to leave the EU.
For a more general discussion, see Tobias Lock and Kanstantsin Dzehtsiarou: The Legal Implications of a Repeal of the Human Rights Act 1998 and Withdrawal from the European Convention on Human Rights and David Allen Green: The Seven Hurdles for Repeal of the Human Rights Act.