Despite a change in Prime Minister after the EU referendum in June, the new Justice Secretary Liz Truss confirmed that human rights reform remains firmly on the Government’s agenda. It remains the Government’s plan to ‘scrap’ the Human Rights Act 1998 and replace it with a British Bill of Rights (BBR).
These reform efforts ought not to be assessed without regard to the UK’s international human rights obligations. The UK is subject to numerous treaties and other (binding and non-binding) instruments that protect civil and political rights (e.g. the right to life, right to liberty, and free speech), economic, social and cultural rights (e.g. the right to collective bargaining, and the right to education), as well as collective rights (e.g. the right to a healthy environment). The UK is bound both by instruments operating globally and regionally. Global instruments include the Universal Declaration of Human Rights or the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social, and Cultural Rights or the Convention against Torture. Regional European instruments include the European Convention on Human Rights (ECHR) and the European Social Charter.
How do domestic reform efforts within the UK relate to these international obligations? It should first be noted that the UK is a dualist state so that international treaties only have effect in domestic law if they are incorporated by an Act of Parliament. While UK law – which includes the common law – is compliant with many obligations arising under the treaties mentioned above, the ECHR is the only human rights treaty that has been expressly incorporated into UK law through the Human Rights Act 1998 (HRA). The HRA makes reference to almost all ECHR rights binding on the UK and it requires public authorities to comply with them. If a public authority fails to do so, the HRA can be used as a basis for judicially reviewing its decision. Where Acts of Parliament are concerned, these cannot be declared invalid as this would go against the doctrine of parliamentary sovereignty. However, a (higher) court can issue a ‘declaration of incompatibility’, which allows for a fast-track amendment procedure. A key provision in the HRA is that domestic courts must ‘take into account’ the case law of the European Court of Human Rights (ECtHR). This is designed to ensure that human rights law in the UK keeps up with the developments at the European level so that the instances of the UK violating its international human rights obligations under the ECHR and of losing a case before the ECtHR are minimised.
How then would a replacement of the HRA with a BBR affect the UK’s compliance with the ECHR? All the ECHR requires states to do is to not violate the rights guaranteed by it. How they ensure this, is up to them. Hence the ECHR does not require transposal into domestic law or a principle asking a national court to mirror the ECtHR’s decisions – though these are very effective ways of ensuring compliance. Therefore, the replacement of the HRA would in and of itself not have immediate consequences for the UK’s international obligations. In the absence of any concrete proposals on a BBR from the Government, one is left to speculate what the material differences between a BBR and the HRA are likely to be.
If the BBR results in a regression of human rights protection, i.e. if there is a shortfall of the human rights protection available at the domestic level compared with what is required by the UK’s international obligations – notably the ECHR – the UK would regularly be in breach of these obligations. This is because public authorities in the UK would be obliged to comply with human rights standards that are lower than those set by the ECHR. Where this is the case, persons not granted the level of protection required by the ECHR are likely to make an individual application to the ECtHR, which would probably result in a finding that the UK was in breach of the Convention.
Depending on the exact content of a British Bill of Rights, there is thus a danger that a situation resembling that before the entry into force of the HRA would be created: for many the only remedy available would be an individual application to the ECtHR. A lack of effective domestic remedies would therefore most probably lead to an increase in cases before the ECtHR being lost by the UK. This might then be regarded by some as ‘undue meddling’ in the domestic affairs of the UK and might lead to renewed or reinforced calls for a withdrawal from the ECHR. Withdrawal from the ECHR system is possible by giving six months’ notice.
This leads to the next and final question discussed in this blog post: are reforms of the UK’s own human rights commitments– repeal of the HRA and replacement with a British Bill of Rights as well as withdrawal from the ECHR – likely to have a negative effect on human rights protection outside the UK’s borders? There are important voices suggesting that this might be so. For instance, the Council of Europe’s Commissioner for Human Rights Nils Muiznieks warned.
No surprise, then, that the current debate in the UK has broader European ramifications. Every step of this debate and its outcome is closely scrutinised by other European states, in particular those with a much less flattering performance in protecting human rights. Many are in fact eager to exploit any backsliding in Westminster's commitment to the Convention system to justify measures reducing their own citizens' and residents' ability to obtain justice through the Convention system.
This goes to show that developments in the UK – which considers itself a promotor of human rights world-wide – are closely watched from outside.
Human rights reform in the UK should not therefore be seen in isolation from its international legal context. Should reform efforts result in a substantive reduction of human rights protection within the UK’s domestic legal order, which falls short of the many international obligations undertaken by the UK, this would place the UK in breach of international law. This would in turn result in a higher number of successful cases brought to the ECtHR against the UK, which might sour relations between the UK and the ECHR system of human rights protection further.
Regular adverse human rights judgements by the ECtHR due to the shortfalls in protection created by a reformed domestic human rights law in the UK, might reinforce calls by those wishing to withdraw from the ECHR system as a whole. While this is legally possible, the damaging effects such a step might have on human rights protection in Europe and on the stability of constitutional democracy in many European states need to be carefully considered. The legitimacy of the ECHR system is being questioned in many countries and withdrawal by one of its founders might lead to a domino effect with unforeseeable consequences for the rule of law and democracy in many (mainly, but not exclusively Eastern) European countries. It is questionable whether the restrictions that the ECHR and ECtHR decisions have placed on Parliament and the UK government are so great as to justify a step with such far-reaching consequences, which might counteract much of what UK foreign policy has tried to achieve since the end of World War II.
Tobias Lock, Senior Lecturer in European Law, co-director Europa Institute, University of Edinburgh, is the author of the British Academy's briefing Human Rights Reform and the UK’s International Human Rights Obligations, for further information please visit the British Academy website.