An edited version of Frank’s presentation to the Interfaith Legal Advisers’ Network on 20 October 2015
The saga of the “British Bill of Rights” grinds on: what follows is an attempt to update readers on where we appear to have got to. [In the interests of transparency I should say that I think it’s a lousy idea.]
Under s 2(1) of the Human Rights Act 1998, the domestic courts are required to “take into account” any judgment, decision, declaration or advisory opinion of the ECtHR: the judgments of the CJEU, on the other hand, are binding. As Lord Judge put it in an address at UCL in December 2013, after he had retired from the Bench:
“I have never doubted … that the words mean what they say. To ‘take account of’ the decisions of the European Court [of Human Rights] does not mean that you are required to apply or follow them. If that was the statutory intention, that would be the language used in the statute”.
His subtext was that UK judges were perhaps too ready to treat judgments of the ECtHR as binding rather than advisory.
The Justice Secretary in the Coalition Government, Chris Grayling, seemed bitterly opposed both to the HRA and to the Convention. But the Conservatives were in coalition with the Liberal Democrats – and there was no way the Lib Dems were going to allow the Conservatives to fiddle about with UK compliance with the ECHR. On the other hand, Dominic Grieve has argued strongly on various occasions – both in and out of office – that human rights compliance was part of the UK’s ‘soft power’ in diplomacy, that the reputational consequences of the UK pulling out of the ECHR would be devastating and that, in any case, there was very little wrong with the current position. All he wanted was for the ECtHR to give states parties a rather wider margin of appreciation than hitherto. All of which is presumably why he was sacked.
The Conservatives went into the recent election with a manifesto pledge to
“… scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights … But it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society” [page 73].
The Queen’s Speech on 27 May 2015 included the bare statement that ‘”My government will bring forward proposals for a British Bill of Rights”. On 8 September Dominic Raab, a junior minister at the Department for Justice told the Commons that “we will bring forward proposals on a Bill of Rights this autumn. They will be subject to full consultation”.
On Sunday 18 October The Independent reported that the Government would announce a 12-week public consultation on the Bill of Rights in November or December. According to the report, it will be worded to make clear that the UK will not pull out of the ECHR. A Bill would then be published in the hope that it will be on the statute-book before the EU in/out referendum expected to be in 2017. The Independent reported that an anonymous cabinet minister had told it that the summer timescale was “aspirational” because the Bill could be “really clogged up in the House of Lords” and predicted it was more likely to be law by the end of next year. The paper also reported that the new Justice Secretary, Michael Gove, was “understood” to be visiting Scotland before the consultation is published, when he will try to convince the Scottish Government to back the Bill of Rights.
The most obvious inference to draw is this: if The Independent’s report is indeed based on an off-the-record ministerial briefing, the worst fears of the vast majority of academic commentators about the UK pulling out of the ECHR are probably dispelled. But a series of complex issues remain unresolved:
- What the HRA did, in effect, was to make Convention rights justiciable in the domestic courts. So if the HRA is repealed and replaced by a “British Bill of Rights, will the UK courts will simply start ignoring Strasbourg jurisprudence completely? If they are currently required merely to “take into account” the jurisprudence of the Court, presumably there would be nothing to prevent them from continuing to do so unless they were specifically forbidden to do so by the new Act. So long as we remain a party to the ECHR itself – and the latest intelligence is that we shall – would the UK courts be prepared to ignore, for example, a unanimous opinion of the Grand Chamber?
- The ECHR is, in effect, part of European Union law. The EU-Council of Europe Memorandum of Understanding concluded in 2007 confirms that the Council of Europe is “the benchmark in Europe for human rights, the rule of law and democracy” – and, in any case, the EU’s own Charter of Fundamental Rights sets out very much the same rights as the ECHR does.
- Can the Westminster Government 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? In strictly legal terms the short answer is “yes” because – devolution notwithstanding – the UK Parliament can override the Scottish Parliament. But given that the Scottish Government firmly opposes repeal, would it be politically realistic to do so? You can just imagine the headlines in The Scotsman and The Herald.
- Para 5 (Safeguards) of Strand One of the Northern Ireland Peace Agreement concluded on 10 April 1998 (aka the Belfast Agreement) declares, inter alia, that
“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including
(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission;
(c) arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland…”.
Not, one would have thought, easy to ignore with impunity, not least because the Northern Ireland Peace Agreement is, in part, a treaty between two sovereign states: the UK and Ireland.
- I suspect that the upcoming consultation will expect the answer “yes”;
- There seem to be complexities that the Government is either downplaying or chooses to ignore; and
- There are international dimensions – particularly in terms of British-Irish relations – that might just come back to bite UK ministers.
So what’s the answer? At the annual Theos lecture on 19 October, at which I was present, Baroness Onora O’Neill, Chair of the EHRC, said in reply to a questioner that “I would expect a British Bill of Rights to be very similar to the ECHR. It’s a bit like saying you want a new set of colours different from the existing ones”. Indeed: so are we talking HRA 1998 with a respray?
On 20 October Philippe Sands QC delivered a lecture at St George’s House on precisely the same theme. It’s at least a couple of orders of magnitude better than anything I could ever do: you can download it here.