The incoming government should take the opportunity of a new parliament to turn around an increasingly negative debate within the United Kingdom about the European Court of Human Rights (ECtHR). Not to do so risks harming the UK’s reputation for upholding the rule of law; weakening its influence on governance issues globally; and detracting from the rights enjoyed by people within the UK.
Prospects for a more constructive approach towards the ECtHR are admittedly uncertain, given election pledges to seek to constrain the ECtHR’s authority in the UK. But the next government needs to realize that a more realistic and fact-based assessment of the Court’s relationship to British law is in the national interest.
The current debate misrepresents the impact of the UK’s Human Rights Act – which incorporates the European Convention on Human Rights into UK law – and the ECtHR’s case law. A more careful consideration of the statistics regarding the Court’s rulings against the UK and other countries, as well as the true impact of these decisions, is required. Attempts to delink the UK from the ECtHR should be resisted. In particular, given their constitutional importance, any moves towards revision or repeal of the Human Rights Act should not be undertaken without an inclusive and informed public debate, in which the government makes clear the many ways in which the Act and the European Convention on Human Rights benefit ordinary people in the UK.
Parliamentarians should look at ways in which human rights considerations can be more routinely examined in the course of parliamentary business in order to facilitate a more constructive debate on controversial human rights issues.
The Human Rights Act currently incorporates the European Convention on Human Rights into UK law and requires UK courts to ‘take account’ (no more) of ECtHR judgments. Since the Act’s passage in 1998, both it and the ECtHR have come under increasing attack from certain sections of the media and from politicians in both the Conservative and Labour parties (despite Labour having introduced this legislation). The Conservative Party’s 2015 election manifesto has pledged to ‘break the formal link’ between UK courts and the ECtHR through repeal of the Human Rights Act.
The positive effects of the Act and the ECtHR gain less press coverage than complaints about ‘rights’ being hijacked by the supposedly unworthy – whether terrorists, criminals or immigrants. The Court is tainted in the eyes of some critics through an assumed association with the European Union, even though it is unrelated to the EU and is instead an institution of the older Council of Europe.
No neutral observer would claim that the ECtHR is perfect, but it has undergone significant reform in recent years, and there is a continuing discussion between it and national courts on the interpretation of the European Convention on Human Rights. Complex problems, such as the threat of terrorist attacks, naturally give rise to challenges in terms of balancing the public interest and protection of individual rights under international human rights law. However, some criticism of the ECtHR appears to be less about finding the right balance than responding to a basic distrust of the Court itself and related concerns about its approach to interpreting the Convention. The climate in which the Court’s judgments are discussed is not helped by populist commentary that is often inaccurate or lacking nuance, a trend described by one observer as the ‘monstering of human rights’.
Often there is more flexibility in the court’s judgments than is portrayed. The decision by the ECtHR on the right of prisoners to vote is a good example. This has been cast by some commentators as the ECtHR forcing the UK to grant all prisoners the vote in the face of strong political and public unease about changing the status quo. However, the ECtHR’s judgment in the case of Hirst v UK (No. 2) only prohibits a blanket ban; subsequent ECtHR decisions have made it clear that governments have considerable discretion in choosing how to implement this judgment.
As such, it is open to any new UK government to consider reviewing the ban for certain categories of prisoners. In 2012 the ECtHR ruled that Italian legislation was consistent with the European Convention as it only denied the vote to prisoners convicted of certain offences against the state or judicial system, or sentenced to at least three years’ imprisonment.
Another issue that has drawn criticism of the Court is its approach to the application of the Convention in situations of armed conflict. However, Article 15 of the Convention allows states to derogate from some of their obligations ‘in time of war or other public emergency threatening the life of the nation’. Of course, some provisions like the prohibition on torture are always binding and cannot be the subject of a derogation. And other branches of law, in particular international humanitarian law, continue to apply.
Statistics about the Court can be misleading. Some critics of the ECtHR worry that it finds against the UK far too often, and there have been reports of the UK losing three out of four cases brought against it, but this fails to take into account that the vast majority of applications to the Court are declared inadmissible and never proceed to a hearing on their merits. When these cases are factored in, the UK’s loss rate falls dramatically: research by the Equality and Human Rights Commission indicates that in the period 1999–2010 only one in 50 cases were lost. Statistics for 2014 published by the Court show that the UK is not among the top tier of states being scrutinized by the Court.
Criticism of the Court also obscures the role of UK courts in judgments. At judicial level there is a constructive dialogue between the ECtHR and the UK’s Supreme Court, and some judgments criticized by the media and politicians are in fact decisions of a UK court. The ECtHR’s ‘margin of appreciation’ principle was introduced precisely to accommodate the legitimate interest of states in implementing Convention standards in a manner consistent with local traditions and values. The Court has indicated that it will show restraint and not interfere with decisions taken at the domestic level unless it feels that national institutions have failed sufficiently to consider obligations under the European Convention on Human Rights.
A Bill of Rights?
Proposals to change the relationship between the ECtHR and the UK courts will face significant legal complications. The Conservative manifesto gives little detail on the Bill of Rights with which it proposes to replace the Human Rights Act, but it is likely that this bill would include elements set out in a proposal from the Conservative Party last autumn. Yet even if the Bill of Rights removed the requirement at domestic level for UK courts to take account of ECtHR judgments, the UK courts would no doubt continue to interpret human rights protections in accordance with the mixture of common law and international human rights law which they currently deploy.
And at the international level the UK would remain bound by its obligations under the European Convention on Human Rights; as such, the UK would still fall within the jurisdiction of the ECtHR. The bill proposed may simply result, therefore, in more cases being brought against the UK in Strasbourg. It would also raise difficult questions about how the legislative changes being proposed could possibly be carried out in Scotland, Wales and Northern Ireland given their devolution settlements.
There is also a pledge that the proposed bill will narrow the content of human rights protection in the UK. However, there is no scope under the European Convention on Human Rights for ‘cherry-picking’ which rights under the Convention the UK is prepared to respect. As such, the proposed bill could place the UK on a collision course with the ECtHR and the Council of Europe.
This raises the prospect of the UK threatening to withdraw from the Convention altogether, a threat that has been made in the past by members of the coalition government. However, even in the extreme scenario of a UK withdrawal from both the Convention and the Court, the UK would continue to be bound by similar obligations in other human rights treaties, such as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and obligations under customary international law. The EU Charter of Fundamental Rights would also still apply. So it is far from clear how Conservative pledges would achieve the aim of restoring a final say on human rights to UK judges and stemming the supposed ‘mission creep’ of Strasbourg.
The UK’s reputation for the rule of law
Dismantling the Human Rights Act with the aim of narrowing human rights protection in the UK and distancing the country from the supervisory functions of the ECtHR would have serious foreign policy implications. It would undermine the UK’s reputation for the rule of law and provoke accusations of hypocrisy in relation to its current human rights agenda – including, for example, the Preventing Sexual Violence in Conflict Initiative. It would weaken the UK’s role in the UN Human Rights Council, election to which the current government sought on the grounds that the UK is a ‘passionate, committed and effective defender of human rights’. The UK’s position in the Council of Europe would also be compromised, not least because the UK has been an active participant in recent efforts to reform the ECtHR, including by hosting a 2012 high-level conference that resulted in the Brighton Declaration. The Declaration committed Council of Europe states to take forward the Court reform process through amending the Convention, for example, to include express reference to the principles of subsidiarity and margin of appreciation in the Convention’s preamble and to shorten the time limits for bringing applications to the Court. Subsequently, Protocol 15 to the Convention has been adopted alongside (optional) Protocol 16 on an advisory opinion process. Neither protocol is yet in force.
The persistently derogatory rhetoric in the UK against the ECtHR risks triggering a wider refusal by Council of Europe states such as Russia to implement the Court’s judgments. It also provides encouragement to states elsewhere to ignore both domestic and international obligations, undermining UK foreign policy objectives in relation to matters such as good governance, conflict prevention and international criminal justice. For example, the Kenyan president, Uhuru Kenyatta, took comfort from the UK’s threats to withdraw from the ECtHR when he criticized the International Criminal Court proceedings against him (these were subsequently dropped). This was not the sort of impact the UK planned as it prepared to celebrate the 800th anniversary of the Magna Carta.
The new government should make it a priority to depoliticize the debate surrounding the European Convention on Human Rights in the UK. In particular, moves to repeal the Human Rights Act should be reconsidered if the Conservatives are elected. Given its constitutional importance, any steps towards revision of this legislation should involve informed public debate as well as consultation with other political parties.
Any new government should pursue a more nuanced and less aggressive tone when commenting on the impact of ECtHR judgments on UK policy. This includes placing UK defeats in context, providing an accurate picture of how frequently such judgments occur, and recognizing that most human rights issues are settled by UK courts rather than by the ECtHR in Strasbourg. The range of policy options available to the government and parliament after any defeat should also be acknowledged.
Educating the public about the true scope of the European Convention on Human Rights, its relationship to international human rights law and its beneficial impact in the UK (and elsewhere) will also help to restore some balance to the discussion of the Strasbourg system in the UK. Most of all, threats to withdraw from the European Convention and the ECtHR should be recognized as unhelpful and ultimately counter-productive.
All of these proposals will require coordination between the Foreign & Commonwealth Office (FCO) and Ministry of Justice, with the close involvement of departments whose policies are the subject of controversial litigation in Strasbourg – especially the Home Office and Ministry of Defence. The government should also ensure that the Attorney-General’s role in providing Cabinet with an international law perspective is reinforced. The FCO should continue to make the case for UK participation in international human rights from a foreign policy perspective.
Parliament should also look at integrating human rights into its daily business rather than leaving it solely to the Joint Committee on Human Rights. One approach could be to require the Committee or its legal adviser to inform other committees, such as Justice, of human rights issues that are relevant to them. This could foster a greater sense of ownership by MPs of human rights issues and facilitate a more informed debate on sensitive matters such as prisoner voting.
The populist tone of the 2015 election campaign, particularly with respect to Europe, will have done little to challenge misconceptions about the ECtHR’s relationship with UK law. A more informed and less sensationalist debate is needed.
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