Roger Masterman: How ‘British’ would a ‘British’ Bill of Rights be?

The perception that the protections afforded by domestic courts under the Human Rights Act 1998 (HRA) should replicate the rights enforced by the European Court of Human Rights at Strasbourg has been a leitmotif of judicial reasoning in rights cases since the implementation of the HRA.  The HRA is an Act of the United Kingdom Parliament, yet domestic law alone cannot provide an adequate account of its effects.  The HRA’s ‘Convention Rights’ are – at the very least – defined in the same terms as rights found in the European Convention on Human Rights, and their domestic effects are – as a result of the combined effects of s.2(1) and s.6 HRA – conditioned by the case-law of the European Court of Human Rights.  The HRA may well be a domestic statute, giving rise to rights enforceable in domestic law, but the Strasbourg roots of its substantive protections are inescapable.

As a result, questions relating to the nature and character of ‘the Convention Rights’ – are they domestic rights, defined and enforceable by domestic courts?  Or are they European rights, enforceable by domestic courts, but defined at Strasbourg? – have provided a recurring subtext to many HRA decisions.  The visible effects of this debate – and the general judicial tendency to downplay the distinctly domestic content of ‘the Convention Rights’ – can be seen in the numerous suggestions that domestic judges applying the HRA should only ‘take their lead’ from Strasbourg, should follow the ‘clear and constant’ jurisprudence of the European Court, and should provide ‘no less’ but ‘no more’ protection than would the Strasbourg Court, have combined to produce a domestic rights jurisprudence which, in its substance, in many ways closely resembles that emanating from the European Court of Human Rights.

Tom Hickman’s excellent recent book, Public Law after the Human Rights Act (Oxford: Hart, 2010) reminds us that the perception that the HRA is merely a device designed to ‘mirror’ rights which would otherwise only be available to applicants at Strasbourg runs deep.  But while the limitations imposed by the Ullah doctrine and its accompanying presumption in favour of the application of relevant Strasbourg case-law continue to resonate in decisions of the highest courts, a growing number of decisions by the House of Lords and Supreme Court have served to illustrate that the ‘mirror’ metaphor oversimplifies the dynamic relationship between national law and the European Court of Human Rights.

In its political incarnation however, the so-called ‘mirror principle’ continues to enjoy considerable currency, and perceptions that the United Kingdom is inflexibly bound by decisions of the European Court of Human Rights have clearly underpinned recent calls for the United Kingdom to extract itself from the Strasbourg jurisdiction, or to seek alternative ways of avoiding what have been referred to as the ‘occasional extravagances of the Strasbourg Court.’

Against this backdrop, it seemed likely that the relationships between domestic law – including any future Bill of Rights – and the Convention jurisprudence, and the relationship between domestic courts and the European Court of Human Rights, would figure highly in any attempt to amend or repeal the HRA.  The bouts of sickness which particular decisions of the European Court have provoked amongst senior politicians appeared to indicate that debate would focus on ways in which the influence of the European Court over domestically-protected rights might be reduced and better effect given to ‘British’ rights and interests.  Yet instead, the Commission on a Bill of Rights has been asked to investigate the creation of an instrument which ‘incorporates … all our obligations under the European Convention on Human Rights.’

These are strong words.  By contrast with the tenor of recent discussions over the competence and legitimacy of the European Court of Human Rights there is little indication given by the Commission’s terms of reference that any new domestic instrument should afford courts greater scope to depart from, or otherwise fail to adhere to, Strasbourg case-law, nor is there any reflection of crude resolution – prompted by debates over prisoner voting rights – that Parliament alone ‘makes the laws of the land.’

Instead, the Commission’s terms of reference hint at the inclusion of Convention guarantees (for instance Article 13) not currently found among those given effect by the HRA and – in the language of ‘incorporation’ – at a more consciously ‘constitutional’ measure than currently exists.  Our continued adherence to the rights protected by the Convention is, it seems, assumed.

What then are we to make of this disconnect between the clear antipathy of senior politicians to the jurisdiction and influence of the European Court of Human Rights and the indications that its influence would not only be maintained, but solidified, under a new Bill of Rights?  The Commission’s terms of reference might well be seen as a concession to the Liberal Democrats, who have long argued in favour of the constitutional protection of human rights.  They might be seen as an attempt to railroad the Commission into making recommendations that will be unpalatable to the more Euro-sceptic of Conservative supporters.  They might well be both.

Mark Elliott’s earlier post on this blog has explored ways in which a re-calibrated Bill of Rights might reduce the influence of the Strasbourg court over the shape of domestic rights protections, but assuming the Commission’s terms of reference are to be taken seriously, it may be that they reflect the tacit acknowledgement that it is in fact unnecessary to radically reform the relationship between national law and the obligations of membership of the Convention system (reform of the European Court itself, another Government objective, being another matter).

From the Strasbourg perspective, the Convention system arguably permits sufficient flexibility to reconcile the constitutional quirks of individual member states with the overarching supervisory role of the European Court and the maintenance of the Convention’s minimum standards; methods of achieving compatibility are largely left to domestic law-makers, while the margin of appreciation doctrine ultimately stands in opposition to the suggestion that our domestic rights jurisprudence is dictated to us by Strasbourg.

From the domestic perspective, the requirement that courts ‘take into account’ decisions of the European Court of Human Rights is increasingly showing itself able to permit flexibility in the manner in which the Convention case-law is translated into the domestic context – most notably with the illustration by the Supreme Court in R v Horncastle that even ostensibly clear Strasbourg authority will not simply be followed as a matter of course – and nothing in the Human Rights Act’s text or case-law excludes the possibility that Parliament might legislate in apparent contravention of relevant and potentially applicable Strasbourg authority.

The idea that national law is meekly subservient to the ever-increasing demands of the European Court of Human Rights therefore provides a convenient caricature for politicians in need of a scapegoat but says little about the discretion afforded to member states in the implementation of the Convention’s minimum standards, or of the ways in which the views of national authorities necessarily feed into – therefore condition, possibly even constrain – the European Court’s decision-making.

‘The Convention Rights’ under the HRA are a peculiar hybrid of Convention and domestic law, and as a result are neither purely European nor domestic in nature.  The core rights enshrined in any successor instrument appear to be destined to follow suit.  Even acknowledging the fact that the Commission is also directed to investigate the inclusion of rights which ‘build on’ the UK’s obligations under the Convention, the continuing influence of the Convention case-law over the content and development of domestic protections for rights of expression, privacy, assembly and association, life and so on, seems to be assured.  The distinctly ‘British’ contribution to any future Bill of Rights is therefore most likely to emerge through acknowledgment by all three branches of the genuinely symbiotic relationship between the European Court of Human Rights and national authorities, rather than through judges and politicians alike treating the Strasbourg jurisprudence as ‘a straightjacket from which there is no escape’.

Roger Masterman is a Senior Lecturer in Law at Durham University.