Mark Elliott: The draft Brighton Declaration, the Human Rights Act, and the Bill of Rights debate

As Noreen O’Meara has already posted, a draft of the Brighton Declaration concerning reform of the European Court of Human Rights (ECtHR) has leaked into the public domain. Of course, that draft may well turn out to be substantially different from the final text, which will reflect whatever consensus (if any) is reached at the High Level Conference on the Future of the European Court of Human Rights in April 2012 – billed by the UK Government as the “flagship event” of its chairmanship of the Council of Europe’s Committee of Ministers. It is nevertheless worth considering what the implications would be if the present draft were adopted: their potential significance, it will be argued, is considerable, and close scrutiny of their merits (or otherwise) is therefore warranted.

Noreen O’Meara’s post provides an excellent overview of and commentary on the present version of the text. This post, however, will focus on a narrower set of issues. In it, I will suggest that the draft Declaration, if implemented, would have the potential to reduce the extent to which the European Convention on Human Rights (ECHR) operates as a concrete restriction upon the legal freedom of state parties. This, in turn, would have implications for both the practical impact of the Human Rights Act 1998 (HRA) and the debate concerning the possibility of replacing it with a “UK Bill of Rights”. In order to develop this argument, it is necessary to begin with some observations about the HRA.

The Human Rights Act: legal and political constitutionalism; national and international law

The HRA, in two related senses, performs distinctive and important “bridging functions”. First, on the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism. By leaving the doctrine of parliamentary sovereignty undisturbed, the Act preserves Westminster’s domestic legal capacity to contravene the ECHR. At the same time, however, the HRA reduces the political scope for exercising legislative supremacy in such a way, not least by requiring courts to use the Convention as a benchmark by which to assess Acts of Parliament (as well as other forms of legislation and administrative action) and authorizing them to issue declarations of incompatibility when legislation is found wanting.

Second, on the vertical plane, the HRA creates a site of interaction between national law and politics, on the one hand, and international law, on the other. One of the defining features of the HRA is that it is not as such constitutive of rights, in the sense of creating or enshrining them in domestic law. Rather, the Act is a conduit whereby the Convention rights are given effect in UK law in a variety of ways and subject to certain limitations – including, most obviously, the capacity of the Westminster Parliament, as matter of national law, to override Convention rights by means of sufficiently clearly worded legislation. As such the HRA implicitly acknowledges, but makes no explicit attempt to resolve, the tension between the legally binding nature of the Convention rights as a matter of international law and the legal freedom of the sovereign UK Parliament to override those rights as a matter of national law.

It is in the interaction of its horizontal and vertical bridging effects that the potency of the HRA lies: the political pressure exerted by a legal judgment that yields a declaration of incompatibility is attributable in part to the fact that, for all that such a declaration is non-binding in terms of national law, it identifies a breach by the UK of norms that are binding upon it in international law. This helps to explain why, for instance, declarations of incompatibility routinely result in remedial legislative action – and why, therefore, the HRA is a more powerful constraint than its status as a non-supreme law bill of rights might be taken to suggest.

The role of the European Court of Human Rights

On this analysis, the success (judged from the perspective of those who welcome rights-based legal restraint of political authority) of the HRA model lies in the way it enables norms that are binding in international law to penetrate the domestic sphere, thereby eroding the distinction between the legal and political realms erected by the orthodox notion of legislative supremacy. This analysis of the HRA is, however, heavily contingent upon certain assumptions about the nature and legal status of the Convention rights themselves. In particular, it presupposes that those rights are characterized by a certainty and precision that gives them real bite. And this, in turn, requires the existence of a mechanism whereby the (inevitably) vaguely-worded text of the Convention may be imbued with specific meaning. In this way, then, the role of the ECtHR is crucial to the HRA model. By standing as the ultimate and authoritative adjudicator upon the meaning of the ECHR, the Court imbues the Convention rights with a legal crispness and practical force that international human rights norms do not inevitably possess.

For example, compare the International Covenant on Civil and Political Rights (ICCPR). While the Human Rights Committee monitors the implementation of the Covenant by state parties, it cannot be said to perform an adjudicative role equivalent to that of the ECtHR. I have argued elsewhere that this may help to explain the differential impact of New Zealand’s Bill of Rights Act 1990 (BORA) and the UK’s HRA. The BORA and the HRA are superficially similar, in that both seek to give greater effect to international human rights instruments – the ICCPR and the ECHR respectively – while neither equips courts to invalidate or set aside incompatible primary legislation. Yet lawmakers in New Zealand are substantially more willing than their British counterparts to enact or maintain legislation that is (in the view of the courts or the Attorney-General, who has a formal compatibility-reporting role under the BORA) incompatible with relevant human rights norms. Part of the reason for this may well be that judicial (or other) views as to compatibility in New Zealand possess less impact because they do not – in the way that a declaration of incompatibility under the HRA does – anticipate the likely outcome of legally binding supranational adjudication. In that way, the ICCPR rights, as they pertain in New Zealand, are softer in nature – and so more susceptible to legislative infringement. Put another way, while the BORA serves as an interface between legal and political modes of constitutionalism at the horizontal level, it does not serve a vertical bridging function equivalent to that of the HRA because of institutional differences between the international human rights regimes to which the two pieces of legislation relate.

The draft Brighton Declaration

Against this background – as I have suggested in a previous post on this blog and, with colleagues, in a submission to the Commission on a UK Bill of Rights – the scope for reforming the HRA, or for replacing it with a Bill of Rights, is limited: the Convention rights are binding upon the UK, and their meaning and application are policed by the ECtHR. However, the position would be different if the Brighton Declaration, in its current form, were implemented. This is so because, for three interlocking reasons, it would reduce the capacity of the ECtHR to invest the Convention rights with precise legal content and to secure their practical application.

First, the Declaration emphasizes that national authorities have primary responsibility for securing the Convention rights, in that the Court’s role is “subsidiary”. The margin of appreciation doctrine is also emphasized to an extent that outstrips its present role in the Court’s jurisprudence: each state party, according to the Declaration, enjoys a “considerable” margin (generally, it is implied, not just in particular contexts) and the Court’s role is to “review decisions taken by national authorities” to ensure that that margin is not exceeded. It therefore appears that cases that got as far as the Court would, under the Declaration, be less likely to result in a judgment adverse to the state party. In that sense, the Convention rights would be rendered less concrete, or less demanding.

Second, the Court’s role would, in some cases, change. At present, the Court determines the meaning of the relevant provisions of the Convention and applies them to the factual matrix of the case. Such judgments are binding under Article 46(1). They also result in concrete pronouncements by the Court about the compatibility of domestic law with Convention norms, thereby in effect fixing national authorities with an obligation to amend such law in order that they may fulfill their duty under Article 1 to “secure to everyone within their jurisdiction” the Convention rights. However, the present text of the Declaration envisages that the Court should be enabled to deliver “advisory opinions”. Under this system, “point[s] of interpretation” could be referred by national courts to the ECtHR, the latter’s role being to “give its opinion on the point of interpretation” while “leaving it to the national court to apply this to the facts of the case”. Such opinions would harness neither Article 46(1) nor Article 1: they would “not be binding”, and nor (given the limitation of the Court’s role to the interpretation of the Convention) would they result in any concrete pronouncement about the compatibility of the relevant national law (or practice). And although the advisory opinion regime would not replace, but would rather sit alongside, the right of individual petition, the Declaration enters a significant caveat: that when such an opinion is “applied” by the national court, the individual concerned “should ordinarily have no further right to make an application to the Court on the same matter”.

Third, fewer cases would reach the court at all. If implemented, the Declaration would result in changes to the admissibility criteria. Article 35 would be amended “to make clear that”, absent exceptional circumstances, an application is inadmissible “if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention”. Exceptional circumstances would be those in which a national court had “clearly erred”, and those in which the case raised “a serious question”, concerning the interpretation or application of the Convention rights.

Such changes to the ECHR regime and the Court’s role within it would have potentially significant implications for the operation of the HRA. As explained above, the relative potency of the HRA is attributable in large part to the shadow which the prospect of binding supranational human rights adjudication casts over the domestic notion of parliamentary sovereignty. The HRA enables that orthodoxy to be at once both formally retained and substantively disrupted. But that is possible in the first place only because domestic courts’ non-binding judgments foreshadow the (strong) possibility of binding judgments by the Strasbourg Court. The three features of the draft Brighton Declaration mentioned above each reduce the probability of such judgments being rendered.

Consider, for instance, a situation in which a domestic court issued a declaration of incompatibility under s 4 of the HRA. Under the regime envisaged in the draft Declaration, the force of such a declaration would probably be less than at present. If the declaration of incompatibility were issued following an advisory opinion by the Strasbourg Court, it would, at least in some circumstances, be open to the Government to contend that that Court might not have concluded (had the matter reached it otherwise than via the advisory route) that domestic law or practice was incompatible with the Court’s interpretation of the Convention. Moreover, the individual concerned would presumably be unable decisively to challenge that view because once the Strasbourg Court had issued an advisory opinion that had been applied in domestic legal proceedings – which it would have been – the Court’s door would be closed. Even if the proposed advisory jurisdiction were not in play, a declaration of incompatibility’s potency would potentially be diminished by the proposed revisions to the admissibility criteria: since the matter would already have been examined by a national court (in proceedings culminating in a declaration of incompatibility), an application to the ECtHR would, absent exceptional circumstances, be inadmissible. And underpinning all of this would be the renewed emphasis on the ECtHR’s subsidiary role and the “considerable” width of the margin of appreciation. The upshot of these changes, then, would be to render the Convention rights less concrete in a way that would doubtless be attractive to a Government that wished to ignore a domestic declaration of incompatibility. Put simply, there would be greater scope than there presently is for the Government to argue that the ECtHR might not see things in the same way as the domestic court, while enjoying the luxury of a procedural regime that reduced the likelihood of the ECtHR pronouncing upon the issue either at all or in a manner sufficiently decisive to remove the scope for advancing such an argument.

The Bill of Rights debate

The debate (such as it is) concerning the replacement of the HRA with a “UK Bill of Rights” is very substantially constrained – whether or not politicians are prepared to admit it – by the simple fact that whatever domestic human rights legislation does or does not say, the text of the ECHR remains the legal bottom line for as long as the UK is a state party to it. Once that point is appreciated, the scope for “reform” of the HRA is very limited – unless it is accompanied by change at the ECHR level. Viewed thus, the draft Brighton Declaration assumes the form of the missing piece of the bill-of-rights debate jigsaw. If the role of the ECtHR were diminished in the way envisaged by the Declaration, the Convention rights themselves would taken on a less obviously prescriptive character. Lighter-touch review by a harder-to-access Court some of whose judgments would become non-binding would render the content of the rights more contestable. As a result, the Convention regime’s capacity to imbue the HRA with real legal bite would be reduced. Alternatively, the features of the new regime could be harnessed more explicitly by means of a reworked bill of rights. For instance, national courts might be required to take account of the UK’s “considerable” margin of appreciation, bearing in mind that – at least according to paragraph 17 of the draft Declaration – the doctrine is based not just on the cultural dislocation of the ECtHR as an international court, but also on the democratic credentials of elected legislatures. National courts might also be legislatively encouraged – or required – to use the advisory opinion mechanism, thereby reducing the prospect of binding judgments rendered by the ECtHR in cases brought by means of individual petition.

For those who regard the HRA as a legislative straight-jacket that undermines Parliament’s ability to legislate in the public interest, the possibilities raised by the draft Brighton Declaration, and the scope they may in turn afford for the weakening of the HRA model, will doubtless be attractive (if modest) ones. Even for those who are less skeptical about the enforcement of human rights via the ECHR/HRA mechanism, there is reason to welcome aspects of the draft Declaration. Certainly, it is right that the process of enhancing the Court’s capacity to manage its caseload should be taken forward. And ECHR/HRA enthusiasts might equally welcome the recognition in the draft Declaration of the need to be sensitive to the fact that the Strasbourg Court should not claim a monopoly of wisdom when it comes to determining the meaning of the Convention text. It should, however, be recognized that the “streamlining” measures proposed by the draft Declaration would have real consequences for the Court’s substantive role, not just the way it operates at a procedural level.

As an interface between the domestic and ECHR legal systems, the HRA’s potency turns, to a large extent, on the nature of the Convention regime. And as a bridge between the realms of (human rights) law and (legislative) politics, the HRA’s capacity to facilitate the disruption of the latter by the former depends, in large part, upon the obligatory character of the transnational regime for which the Act serves as a conduit. Reform of the ECHR and its associated machinery along the lines envisaged in the draft Brighton Declaration would, of course, have implications across Europe. But it possible to assert, without undue parochialism, that it might have particular significance in the UK, where the Convention serves – and, the “bill of rights debate” notwithstanding, is likely to continue to serve – as the closest approximation there is to a constitutional bill of rights. Against that background, the Brighton process deserves the sort of scrutiny that would – in any country with a “normal” constitution – accompany a proposal to amend the constitution itself. It may very well be that none of the aspects of the present draft that are discussed above will find their way (at least in their current form) into the final version of the Declaration. It is important, however, that those arguing for the inclusion of those aspects of the draft – including, presumably, the UK Government – are required to face up to, and defend, their potential implications.

Mark Elliott is a Senior Lecturer in Law at the University of Cambridge