The Evolution of Human Rights in Britain

Human rights discourse in Britain is fairly weak. Without a formal constitution, we have struggled to foster a culture in which people cherish and assert their rights. The absence of rights culture in Britain is compounded by our often anti-rights press. The Daily Mail for instance ran a piece earlier this year with the headline: ‘Identities of suspected killers and rapists on the run are kept secret, and you guessed, it’s because of human rights.’ This lazy headline is symptomatic of rights discussion in Britain – obstructing, not protecting; holding us back rather than proof of progress. How human rights can be the villain of a sentence in which the words ‘killers’ and ‘rapists’ are used is beyond me, though there are not enough hours in the day to try and understand the Mail’s linguistic charms. The Government’s 2015 election manifesto included plans to repeal the Human Rights Act, an important piece of legislation for thousands of vulnerable Britons. The ensuing debate has been riddled with misconceptions. Facts are clouded by emotive cries of Britain being run from Strasbourg-by-proxy. As a result, political willpower has tended to prevail over principles of equality and justice. These misconceptions must be addressed in order to truly appreciate what the Human Rights Act is, and what it is not.

The Human Rights Act gives greater domestic effect to the rights enshrined in the European Convention on Human Rights, to which the United Kingdom has been a party since the 1950s and played an instrumental role in drafting. Before the Act, those who felt their rights had been violated were forced to exhaust all domestic remedies before taking the United Kingdom as a nation to the Strasbourg courts. Needless to say, this is both time-consuming and expensive, and consequently not a viable option for the vast majority. The Act brought these rights home in the sense that individuals can now bring human rights cases to the domestic courts instead of Strasbourg, making rights far more accessible in practice. What the Act did not do was impose new rights on the British – without the Act, human rights obligations are still legally binding on the United Kingdom so long as it is a party to the European Convention.

The most common gripe with the Human Rights Act is its confiscation of power from elected British representatives, handing it instead to European judges in Belgium. Variations of the claim that the Human Rights Act ‘undermines Parliamentary sovereignty’ are aplenty, yet find their basis in falsehoods. The Act requires British courts to ‘take into account’ the rulings at Strasbourg when hearing domestic human rights cases. The UK should really be taking into account Strasbourg rulings anyway given its obligations in the European Convention, and should welcome interpretative guidance on how to defend the rights of the vulnerable from any source, let alone such an authoritative one. Why the Government would want to ignore human rights counsel from Strasbourg, as is its intent according to its 2014 policy paper on the repeal of the Human Rights Act, is baffling. This is particularly strange given that the relationship between the Strasbourg and British courts goes both ways. The 2009 British Supreme Court decision in R v. Horncastle triggered the European Court of Human Rights to backtrack on their previously held ruling on the compatibility of hearsay evidence with the right to a fair trial. This serves as just one example of the British courts’ ability not only to disagree with Strasbourg, but also to influence their official position. The dynamic between the domestic and regional courts is just that. A dynamic. Give and take, not the polar opposite dichotomy that is often proclaimed. It’s not them versus us - some of the European judges are even British!

Part of the sovereignty argument is that British courts are given too much power under the Human Rights Act. Critics declare the existence of a hierarchy with Strasbourg judges with the most power, followed by British judges, and at the bottom impotent British politicians. This is not the case. British judges do not have the power to overturn Parliamentary legislation – this would represent a violation of the principle of separation of powers. If a British judge deems an act of Parliament to be in breach of the UK’s obligations according to the European Convention, their arsenal is limited to a declaration of incompatibility. The democratically elected Parliament has the last word, and can if it so chooses ignore the judicial declaration altogether. The Human Rights Act does not wrest power away from the British Parliament in favour of British or European judges – it simply affords British people the chance to assert their rights at home instead of abroad. Thinly concealed behind the Parliamentary sovereignty argument is a desire for the State to be less constrained by international human rights standards – a desire which must be seen as cynical.

The Government policy paper for repeal seems to understand a British Bill of Rights as a kind of panacea, curing the ailments of sovereignty interference, lock-in to European judgements and relative weakness compared to Strasbourg judges. The paper notes that repeal will make the Supreme Court the ultimate arbiter in matters of human rights, and essentially sever the link between Strasbourg and the UK. It goes on to state that the role of human rights law will be limited to ‘the most serious cases’, requiring a threshold of what constitutes ‘most serious’ to be crossed before human rights apply. This implies that the Bill will cover a narrower range of rights than the European Convention, and that some rights will be subject to heavier qualification. This is of course troubling – human rights are intended to supersede context and apply universally, something the current Government wishes to subvert with Whitehall-defined rights. Sinister in theory, but how far can this be implemented in practice?

Regardless of the cynical underbelly of the Government’s intentions, the UK is nonetheless constrained by its existing human rights obligations. Were the Government to repeal the Human Rights Act and replace it with a British Bill of Rights, they would not have the luxury of legislating on a blank canvas. As a party to the European Convention, the UK must honour the human rights it has signed up to protect, even when writing up its own Bill of Rights. This naturally limits the free license of Parliament to draw up its own Bill, and while individuals could not challenge the Bill’s narrow rights domestically, they could still take the United Kingdom to the European Court of Human Rights. The UK’s own Bill of Rights cannot therefore exist in triumphant isolation from international standards, no matter how much the State wishes it so.

Parliament is sovereign. This is a well-established principle in British constitutional doctrine. In essence, this means that Parliament can do whatever a majority of its members wish, including repealing the Human Rights Act. Where British Parliament is less unbridled is the imposition of a British Bill of Rights on Cardiff, Edinburgh and Belfast. The Sewel Convention, which outlines the extent of devolved powers in British nations, holds that Whitehall shall refrain from legislating on matters that the devolved parliaments can deal with themselves. Repealing the Human Rights Act is a matter solely for Parliament and does not violate the terms of the Sewel Convention, but forcing a Bill of Rights on other sovereign British nations does. In essence, this means that unless Belfast, Cardiff and Edinburgh consent to Whitehall intervention, the imposition of a Bill of Rights would be unconstitutional. This is not to say it would be unlawful as such, but would show enormous disrespect to the principles of constitutionality with regard to devolved powers. It would take a brave Government and a wealth of political capital to dismiss the Home Nations so brazenly. Given the current fragility of the Union, Westminster might not be able to afford such a costly move.

It is this last point that drags the Human Rights Act out of the legal quagmire and into the harsh light of current context. Although the links between Strasbourg and the UK have been contentious since their inception, talk of repeal comes at a time when the world seems to be shunning internationalism in favour of behind-closed-doors domestic existence. Why now? Has repeal been thrust onto the agenda because the Conservatives have their first majority government since the birth of the Human Rights Act? Or has it been aided by a climate of frenzied nationalism fuelled by recent economic crisis and perceived security threat? It is impossible to separate the idea of a British Bill of Rights from wider Brexit context, with people fed up of being lorded over by the combined menace of Strasbourg and Brussels. But herein lies the tension. Where political alliance can be contextualised, human rights cannot. Human rights are fundamentally universal. Britain cannot ditch them in the same way it can ditch the EU. Replacing the Human Rights Act with a British Bill of Rights represents a willing withdrawal from a proven system of international human rights law which empowers the vulnerable. To do so would be legally questionable, politically reckless and morally abject.