A “British Bill of Rights”: implications for devolution

5 November 2014

Article written by Alys Thomas and Elisabeth Jones

Image from Wikimedia Commons. Licensed under the Creative Commons.

Image from Wikimedia Commons. Licensed under the Creative Commons.

The Conservative Party published its proposals for a “British Bill of Rights” in a strategy paper, Protecting Human Rights in the UK  (October 2014) and will shortly be publishing a draft Bill of British Rights and Responsibilities. The key objectives are to:

  • Repeal the Human Rights Act 1998.
  • Replace it, but in a way that still includes the text of “the original Human Rights Convention”.
  • Clarify the meaning of the Convention Rights included in it, and “limit the use” of those rights to “the most serious cases.”

The paper praises the original European Convention of Human Rights (“the Convention”), drawn up (largely by UK civil servants) after World War II, with its absolute rights such as: freedom from torture and the right to a fair trial; rights which can only be limited in restricted circumstances, such as the right to life and the right to liberty; and other qualified rights, such as the right to freedom of expression, which can be restricted in a range of scenarios. It states that:

The Convention is an entirely sensible statement of the principles which should underpin any modern democratic nation. Indeed, the UK had a great influence on the drafting of the Convention, and was the first nation to ratify it. In today’s uncertain world, our commitment to fundamental human rights is as important as ever. That is why we must put Britain first, taking action to reform the human rights laws in the UK, so they are credible, just and command public support.

The strategy paper asserts that over the past 20 years, there have been significant developments which have undermined public confidence in the human rights framework in the UK, and which now necessitate reform.

If implemented, the proposals would have implications for devolution in the UK with the former Attorney General, Dominic Grieve MP commenting:

At present the existing Convention rights underpin the powers devolved to both Scotland and Northern Ireland and now Wales. If the Convention rights are qualified, will the devolution settlements then be altered? In the case of Northern Ireland they are part of an international treaty. Or will the changes be confined to England and the reserved powers of the UK government—creating two different systems of rights in one country. How will the courts be expected to reconcile those differences?

The Convention is incorporated directly into the devolution statutes. So, for example, under the Government of Wales Act 2006, Acts of the National Assembly for Wales which are incompatible with Convention rights are “not law” and this also applies to secondary legislation.

Professor Aileen McHarg of the University of Strathclyde explains further:

This dual system of human rights protection means that while the UK Parliament is free to repeal the HRA, this would not by itself end the domestic incorporation of the ECHR in the devolved nations.

While people in Scotland, Wales or Northern Ireland could no longer bring Convention-based actions against UK departments and other public bodies, nor argue for Convention-compatible interpretations of UK legislation, they would still be able to challenge primary or secondary legislation enacted by the devolved institutions or other acts of the devolved governments.

If the UK Government wished to go further and withdraw from the ECHR altogether – as was suggested earlier this year by some Conservative politicians –this would require amendment of the devolution legislation as well. At this point, things become constitutionally interesting.

This is however not the only possibility; the UK Parliament could of course amend the Government of Wales Act 2006, and so   replace references to the Convention rights as they now stand with references to the rights that will be set out in the proposed UK Bill of Rights. That would change the Assembly’s competence and so would require a Legislative Consent Motion to be passed in the Assembly. (This requirement is not a statutory one but is a strong constitutional convention and is enshrined in a Memorandum of Understanding between the UK and Welsh Governments).

In the case of the Northern Ireland Act 1998, the embedding of the Convention is reinforced by the Good Friday Agreement. Any attempt to remove references to the Convention could constitute a breach of an international treaty separate from the Convention itself.

The strategy paper’s main contention is that the European Court of Human Rights has developed “mission creep” and has expanded Convention rights into new areas, beyond what the framers of the Convention had envisaged  when they signed up to it. Examples cited include:

  • The current dispute between the Court and the United Kingdom over voting rights for prisoners;
  • A 2007 ruling by the Court widening prisoners’ right to go through artificial insemination with their partners;
  • The Vinter v UK judgment of 9 July 2013 which, according to the strategy paper, decided that “murderers cannot be sentenced to prison for life”. (However, many leading Human Rights lawyers, such as Lord Pannick QC, consider that the the Court did not rule out murderers receiving whole-life sentences, and remaining in prison for the whole of their lives. It ruled that such sentences should be reviewed periodically to see if they were still justified, in the light of any progress towards rehabilitation made by the prisoner).

The strategy paper accepts that the HRA affirms the sovereignty of the UK Parliament over human rights matters. However, it argues that section 3(1) undermines this sovereignty in practice, by requiring UK courts to “read and give effect to” – i.e. to interpret – legislation in a way which is compatible with Convention rights, as far as it is possible to do so.

Critics of the proposals point out that if Parliament has made its intentions clear in legislation, it is not possible for the courts to override those intentions by way of interpretation, even if they consider that the legislation breaches the Convention. In such cases, the courts can only make a declaration that the legislation is incompatible with the Convention. This does not affect the validity, continuing operation, or enforcement of the legislation.

Further, Parliament can override a “Convention-friendly” interpretation by the UK courts, if it wishes, by amending or replacing the legislation in question in a way that excludes any possibility of such an interpretation.

The strategy paper also says that the proposed reforms will mean that the European Court of Human Rights is “no longer binding over the UK Supreme Court”. It unclear what the effect of this would be. In the case of Manchester City Council v Pinnock [2010] UKSC 45, the UK Supreme Court  stated that it was not “not bound to follow every decision of the Strasbourg Court. Not only would it be impractical to do so: it would sometimes be inappropriate…”.

Another reform promised by the paper is that the European Court of Human Rights will “no longer be able to order a change in UK law and [will become] an advisory body only”. Critics point out that the European Court of Human Rights has no power to order a change in UK law at present. If the Court finds that a piece of UK legislation is incompatible with the Convention, it will say so in a judgment, but the Court has no ability to annul that legislation, or to require the UK Government or Parliament to change it in any specific way.

Critics note that, if countries which have signed up to the Convention fail to implement Court judgments, the Committee of Ministers of the Council of Europe can take diplomatic steps to persuade them to do so. The Committee of Ministers is a body on which every member state of the Council of Europe is represented. That is the only enforcement mechanism in the Convention.

The paper also promises that a future Conservative Government would ensure that there was “a proper balance between rights and responsibilities in UK law”. It argues that its proposals are grounded in what it says are two basic legal facts:

  • “There is no formal requirement for our Courts to treat the Strasbourg Court as creating legal precedent for the UK. Such a requirement was introduced in the Human Rights Act, and it is for Parliament to decide whether or not it should continue.” In 1966, the UK voluntarily agreed to comply with judgments of the Strasbourg court, as a matter of international law. The HRA did not affect that in any way and as stated above, the UK Supreme Court does not regard itself as automatically bound to follow Strasbourg decisions.
  • “In all matters related to our international commitments, Parliament is sovereign.”
  • Foreign relations, including the power to enter into international commitments, was, until relatively recently, a matter for the UK Government, with no formal role for Parliament. However, under the Constitutional Reform and Governance Act 2010, most international treaties now have to be laid before Parliament before they become binding on the UK. The UK could withdraw from the Convention but, unless and until it does so, it is bound, as a matter of international law, to comply with the Convention’s terms (including abiding by judgments of the European Court of Human Rights). Parliament cannot alter that fact of international law. At the same time, however, the domestic-law doctrine of Parliamentary sovereignty means that Parliament can pass legislation that is incompatible with any international commitment of the UK.