Helen Fenwick: The Conservative anti-ECHR stance and a British Bill of Rights: rhetoric and reality.

Conservative policy on the Human Rights Act: the role of the Bill of Rights’ Commission and the aim of handing back autonomy to the UK in human rights matters

Deep dissatisfaction with the Human Rights Act (HRA) and a determination to repeal it was reflected in Conservative pronouncements in the run-up to the 2010 General election, in the Conservative manifesto (which promised to repeal the HRA and replace it with a British Bill of Rights), and recently, by David Cameron, who partly blamed the HRA for the riots, and by Theresa May in her famous Maya the cat example at the 2011 Conservative conference. Clearly, when the Coalition government was formed this became a very difficult and delicate issue for the Conservative leadership. The party had to be appeased, but so did the Liberal-Democrats, who had made a manifesto pledge to retain the HRA.

A partial and temporary solution – obviously unsatisfactory in the long-term from the viewpoint of a number of senior Conservatives – was found by consigning this issue to a Commission to examine the possibility of creating a British Bill of Rights (BoR). The setting up of the Commission kept matters in a state of uneasy stasis. But there is a continuing fundamental mismatch between the stance taken by the Conservative leadership on the HRA and ECHR, and the remit of the Commission. Its remit has nothing to say about repeal of the HRA or complete withdrawal from the European Convention on Human Rights, and according to the remit, the BoR should incorporate all ECHR obligations. But at the same time senior Conservatives and the Conservative nominees on the Commission (in previous publications and in answers given by members of Commission to the Political and Constitutional Reform Committee in June 2011) appear to consider that the attempt should be made under the BoR to weaken the ties to Strasbourg created by the HRA. Their idea appears to be to seek to utilise the BoR to aid in increasing the autonomy of the UK Parliament in human rights’ matters.

For example, Martin Howe QC, a Conservative nominee on the BoR Commission, said on this to the Commons Select Committee on Political and Constitutional Reform, which questioned the members of the Commission in June 2011: ‘There is a perception at the moment, I believe, among a section of the country, that the Human Rights Act is an alien import that comes in from abroad…The Human Rights Act, obviously in a sense it can be said to constrain or conflict with parliamentary sovereignty’. Michael Pinto-Duschinsky, a Commission member, has written on this (prior to being appointed to the Commission) that the HRA weakened Parliamentary sovereignty because it: ‘obliged British judges to accept the interpretations of the very broad terms of the European Convention on Human Rights before their own interpretations. It obliged them to place these interpretations from Strasbourg before the meaning of the legislation passed at Westminster’.

So it is worth exploring the reality of the idea of using the BoR to give Parliament greater autonomy in terms of disregarding the ECHR and the Strasbourg Court. Parliament under the HRA can already disregard both, as a matter of constitutional theory. Parliament is currently free to legislate contrary to the ECHR, and public authorities, including the courts, must apply the legislation regardless of the incompatibility (s6(2)HRA). S3 HRA can, of course, depending on the context and nature of the statutory provisions in question, be relied upon to reinterpret or modify apparently incompatible provisions. However, if the intention to create incompatibility is expressed in clear enough terms the courts may be left with no option other than to declare the incompatibility. Thus, s3 – again as a matter of constitutional theory – does create some limits on Parliamentary sovereignty in terms of the form of legislation in the sense of requiring Parliament to legislate in very clear terms if it wishes to disregard the ECHR. In practice post-HRA Parliament has not been invited to pass provisions that the government concedes are incompatible with the ECHR, and, paradoxically, the hostile stance of the current Conservative leadership towards the HRA does not indicate that this is likely to change. If the leadership was content merely to utilise the sovereignty-preserving mechanisms of the HRA to disregard Strasbourg, that would appear at face value to meet its current concerns. Clearly, it does not want to declare openly that it intends to legislate contrary to the ECHR – which is laudable. Hence the BoR might seem to offer a way out since it could give the impression – by the means indicated below – that legislation apparently running counter to Strasbourg interpretations was nevertheless human rights-compliant as far as the BoR was concerned.

An exception to the above point as to the general Parliamentary stance so far post-HRA to legislation incompatible with the ECHR and the use of s6(2) HRA might appear at first glance to arise in respect of prisoners’ voting rights – the issue which is currently giving rise to enhanced feeling against the ECHR among Conservatives. The Labour government did not respond to the ruling at Strasbourg in Hirst v UK (2004) 38 EHRR 825) to the effect that the failure of the UK to allow such rights breached Article 3 of the First Protocol; in 2011 the UK Parliament voted (by 234 to 22) to continue to disregard the Hirst decision. In Greens and M. T. v United Kingdom the Court ordered the UK to bring forward, within six months of the judgment becoming final in April 2011, appropriate legislative proposals to implement Hirst. At present (as announced in Parliament by Nick Clegg on 11 Oct 2011) the Strasbourg court has granted an extension to the deadline for implementing prisoner voting rights that was set in the Greens judgment against the UK because the Court is considering an Italian prisoner voting rights case—Scoppola v Italy.

Since the Hirst ruling the offending provisions of s.3 of the Representation of the People Act 1983 have remained legally valid and applicable despite their incompatibility with the ECHR. But of course the 1983 Act is not a post-HRA statute; thus, Parliament has failed to act in response to Hirst rather than voting positively to introduce incompatible provisions. Such provisions, it should be pointed out, were apparently introduced in the Communications Act 2003 , which was unaccompanied by a statement of the statute’s compatibility, under s19 HRA, but the government did not accept that they were incompatible, a stance that was then vindicated by the House of Lords’ decision in Animal Defenders.

So the sovereignty-preserving provisions of the HRA are under-used; therefore concern as to the use of s3 to subvert Parliament’s intention in passing non-Convention-compliant provisions does not appear to be the key driving force behind introducing a BoR. From an anti-ECHR stance the more worrying role of s3 HRA, combined with s2, is that s2 allows a Strasbourg decision to be absorbed directly into UK law via the use of s3 with no opportunity for executive intervention. In other words, if a Strasbourg decision is handed down (that can be viewed as clear and settled) that happens to be relevant to a case in front of a court, based on a particular legislative provision, the court does not need to declare the incompatibility between the provision and the newly interpreted Article in question: it can merely rely on the decision to reinterpret the provision under s3.

So obviously a BoR could omit an equivalent to s3 or weaken it.  Under it the wording of a s2 HRA equivalent could make it clear that the UK courts could (should/must?) disregard Strasbourg authorities in a range of circumstances, contrary to the recent decision in Cadder (see in particular [33], [40], [41], [47]).  That could – depending on the varying stances of UK judges as to the value of following Strasbourg – in effect, buy the executive time as to contentious issues. The executive could delay bringing forward measures to implement a Strasbourg decision it viewed as contrary to UK interests – as it has in respect of prisoners’ voting rights – and could seek the most minimal implementation of the decision possible, as it appears likely to do in that instance. In contrast, if at present the judges under ss2 and 3 HRA allowed such implementation in UK law, the executive would obviously have no assurance that it would be minimal.

Importing a s2 equivalent on these lines into a BoR might appear also to offer advantages to the executive in relation to duties to adhere to the ECHR that presumably would be placed on public authorities under a BoR.  Changing s3 would not fully address the HRA problem as the Conservative ECHR-sceptics appear to perceive it.  Examples of prisoners, suspects or immigrants obtaining special favours due to the HRA (eg claiming an ECHR right to have a games console or Kentucky Fried Chicken) – however ludicrous and spurious – would probably not be linked to s3 HRA, but to s6 and 2.  Changing the s2 equivalent on these lines might mean that a BoR could change the balance between competing rights (as s12 HRA was intended to do) and between rights and societal interests, without finding that judicial adherence to Strasbourg jurisprudence merely reinstated the balance as struck at Strasbourg. That might appear to mean inter alia that decisions as to the matters that should be taken into account under Article 8 ECHR (or other Articles) in relation to deportation of persons who have committed a criminal offence (or are terrorist suspects) could disregard Strasbourg jurisprudence on the matter.

However, even if a BoR was introduced importing the changes discussed, the problem would obviously remain of the relationship of the UK to Strasbourg at the international level. It appears likely that even if Parliament deliberately legislated contrary to the ECHR, the UK would eventually be found to be in breach of its obligations at Strasbourg. A greater time-lag between introducing such legislation and the point at which such a finding might be made, could be created, but that would be all.

Thus, the government’s other method of distancing the UK Parliament from Strasbourg is to be brought about, Conservatives have claimed, by reform of the Strasbourg Court. Such reform is to be pressed for as part of the UK’s chairmanship of the Council of Europe which begins on 7th November 2011. According to Parliamentary written answers and statements in March 2011, the government intends to press for placing the primary responsibility for protecting the ECHR rights on states, rather than the Court (see M. Harper, HC Deb Vol 525 Col 31 WS, 18th March 2011). Dominic Grieve is intervening in Scoppola in order to argue that the Court should devolve greater power over the interpretation of the ECHR in contentious cases to the member states. The BoR Commission has a second brief regarding its advisory role on reform of the European Court of Human Rights. Anthony Speaight indicated in evidence on the BoR Commission to the Constitutional Reform Select Committee in July 2011 that the Committee would look at the question of creating an enhanced margin of appreciation in its role in relation to the ECtHR: “I think one could say that there is an emerging consensus in the United Kingdom that the European Court must allow a greater margin of appreciation than it has up to now if it is to continue to have the respect and legitimacy that it needs to do its work.  If one reads the full text of the Interlaken Declaration, and then the Izmir Declaration…buried deep in four or five pages of fairly platitudinous utterances one finds in each of them a statement of wish and aspiration for greater subsidiarity”. (The reform process began in 2010: see the “High Level Conference on the Future of the European Court of Human Rights” (2010) and the “Interlaken Declaration.” 19 February 2010.)

So the idea is that the Court should afford states a much wider margin of appreciation as to sensitive national issues – in other words, engage in much greater “subsidiarity”. Such changes would address those issues – most obviously that of prisoners’ voting rights – that have arisen in the UK due to Strasbourg decisions and not as a result of the operation of the HRA.  But at present it is fair to say that that argument is opposed to the dominant trends in Strasbourg jurisprudence over the last twenty years. So there is not much basis for viewing this argument as likely to succeed.

Clearly, all these matters are political highly contentious and none of the three major parties has a monolithic stance on them. For example, some Conservative voters and senior Conservatives (in particular, Ken Clarke) may need convincing that it is especially problematic for the UK to accept the ECHR obligations as determined by the Strasbourg Court. At present the BoR Commission with its members – as indicated below – split between Conservative and Liberal-Democratic nominees, may be unlikely as a body to support the idea of marginalising the role of the Strasbourg court or proposing repeal of the HRA and the introduction of a BoR that – at least in the ways mentioned – weakens the link to Strasbourg. But as far as parts of the Conservative party are concerned, expressing – and fuelling – exasperation with the HRA – as senior Conservatives, including Cameron, have done – gives rise to expectations that may eventually need to be fulfilled, but which probably cannot be unless the UK withdraws from the ECHR – which is not Conservative policy.

So what role, if any, is the current BoR Commission likely to play, in this situation? The appetite of a number of senior Conservatives for repeal of the HRA and diminution of Strasbourg influence appears undiminished, even enhanced, in the context of the Coalition. The Prime Minister has reiterated a number of times his view that the BoR can provide a remedy for the damage he views the human rights’ culture under the HRA as having done in Britain, and has referred approvingly to the setting up of the Commission, implying that it will produce proposals for an instrument fulfilling the aims he has set out for it. Yet the government has set up the Commission with a remit and membership almost completely at odds with those aims. The Commission appears to be divided between Liberal Democrat nominees who support the HRA (Kennedy, Lester, Sands, Edward) and Conservative nominees who want to see it repealed and replaced by an instrument that could appear to offer aid to the government in terms of escaping from the demands of the Strasbourg Court and the ECHR (Anthony Speaight, Martin Howe, Michael Pinto-Duschinsky, Jonathan Fisher QC). The Commission appears to be in the position of dealing with near-irreconcilable aims since the underlying concern, from the perspective of a number of senior Conservatives and probably the majority of the party, in relation to both express aspects of the BoR Commission’s remit, clearly appears to be to seek to enhance the autonomy of the UK Parliament at the expense of both Strasbourg’s influence and the maintenance of ECHR standards, as interpreted at Strasbourg. That may amount partly to political posturing, to appease elements of the Conservative party, and the likely impact in practice if the proposals were implemented eventually in a BoR might well fall short of the aspirations expressed. But the proposals of the Conservative nominees may be partially utilised in preparing  Conservative election manifesto proposals in 2015 which may to an extent appease those Conservatives who favour withdrawal from the ECHR.

Future developments are hard to predict: the dream, from an extreme anti-ECHR point of view, of leaving the Westminster Parliament to decide on human rights’ matters without being troubled by Strasbourg decisions may be realised. Perhaps the Strasbourg system will be marginalised in future; possibly the Court’s near-unworkable case-load will lead to a change in its role, moving towards a stance whereby it makes pronouncements only in principle on ECHR interpretation; the argument that some of the judges on the Court, from certain countries without democratic traditions, are not in a position to give rulings of sufficient quality, may bear fruit. Possibly other countries may decide to withdraw from the ECHR. Supporters of the ECHR have to recognise that these possibilities cannot merely be disregarded, as though the European appetite for the ECHR as interpreted at Strasbourg, was an unchanging entity. But at present these are only remote possibilities.

So the contradiction between the role Cameron claims the Commission will play and the role it seems likely to play is readily apparent. Thus an air of unreality pervades the deliberations of the Commission. Possibly its eventual proposals will prove merely irrelevant in the coming battle to be fought between the parties over the fate of the HRA. Even if the HRA is eventually repealed, possibly after the 2015 General Election, this piece has sought to show that the role a BoR – even passed under a future Conservative-dominated Parliament – might play in distancing Parliament from the Strasbourg Court is unlikely to match up to Cameron’s current anti-ECHR and anti-HRA rhetoric.

Helen Fenwick is Professor of Law at The University of Durham.