Written evidence from the Bingham Centre for the Rule of Law (HRA0026)

1. The Bingham Centre for the Rule of Law welcomes the opportunity to respond to this Joint Committee on Human Rights (‘JCHR’) inquiry into 20 years of the Human Rights Act 1998 (‘HRA’). We do not seek to address all of the issues raised by this inquiry and our written submission focuses on questions 1, 2 and 4 of the terms of reference. The Centre's response is authored by Lucy Moxham, Associate Senior Research Fellow.

2. The Bingham Centre for the Rule of Law was launched in December 2010 to honour the work and career of Lord Bingham of Cornhill – a great judge and passionate advocate of the rule of law. A London-based organisation working internationally, the Centre is dedicated to the study, promotion and enhancement of the rule of law worldwide. It does this by defining the rule of law as a universal and practical concept, highlighting threats to the rule of law, conducting high quality research and training, and providing rule of law capacity-building to enhance economic development, political stability and human dignity. The Bingham Centre is a constituent part of the British Institute of International and Comparative Law (BIICL), a registered charity and leading independent research organisation founded over 50 years ago. Further information can be found on our website http://binghamcentre.biicl.org/

“Bringing rights home” – What do statistics on the UK and the Convention system tell us?

3. The 1997 White Paper ‘Rights Brought Home: The Human Rights Bill’ set out several aims for incorporating the European Convention on Human Rights (‘ECHR’ or the ‘Convention’) into UK law. The primary stated aim for “bringing rights home” was so that “the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost” of going to the European Court of Human Rights in Strasbourg (the ‘ECtHR’ or the ‘European Court’).[1]

4. On the one hand, cases continue to be taken to the Strasbourg Court and it has been commented that “It is not true, therefore, to state that individuals from the UK are no longer interested in applying to the ECtHR or that there is complete satisfaction with, or access to, the human rights remedies available at the national level”.[2]

5. On the other hand, and despite the impression given in some quarters of the media,[3] the number of UK cases before the Strasbourg Court is actually very small. For example, in 2017 only 0.2% of the Court’s total caseload comprised UK cases,[4] and in 2016 this figure was 0.3%.[5] This compares to a decade ago when 1.7% were UK cases in 2007.[6]

6. Similarly, in 2017 only 0.7% of all applications allocated to a judicial formation at the Strasbourg Court were UK cases,[7] and in 2016 this figure was also 0.7%.[8] These numbers have generally been falling since the HRA came into force in 2000. Allowing for a period of several years for cases brought under the HRA to work their way through the UK and ECHR systems, we can examine statistics from the early 2000s as broadly indicative of the pre-HRA position. So, for example, in 2000 6% of all applications allocated to a decision body were UK cases.[9] This figure was 3.4% in 2001;[10] 3.5% in 2002;[11] 2.5% in 2003;[12] and 2.3% in 2004.[13]

7. In addition, the numbers of judgments and adverse judgments in UK cases are very low. For example, in terms of cases finding against the UK, only 1.5% of all judgments delivered by the Court from 1959–2017 found the UK in violation of the Convention (this is 1.8% of all judgments finding at least one violation).[14] In 2017 only 0.2%, 2 out of all 1,068 judgments given by the Strasbourg Court found a violation by the UK,[15] and in 2016 this figure was 0.7%, 7 out of all 993 judgments.[16] Again, this represents a decrease since the coming into force of the HRA. For example, in 1999 6.8% of all judgments given by the Court found at least one violation by the UK,[17] and in 2000 this figure was 2.3%.[18] The figure was 2.1% in 2001;[19] 3.6% in 2002;[20] 2.8% in 2003;[21] and 2.6% in 2004.[22] In fact, of all 47 member states, from 1959-2017 the UK has the second highest number of judgments finding no violation (after France in first place).[23]

Improving awareness of human rights in society – Is there popular support for the HRA?

8. The 1997 White Paper accompanying the Human Rights Bill suggested that incorporation of the Convention would “enhance the awareness of human rights in our society”.[24] However, as noted by the JCHR in its 2018 report ‘Enforcing Human Rights’, “While there was consensus that the values underpinning human rights are deeply embedded in our national psyche, there was less confidence that there is a culture of human rights that cherishes the legal protections intended to ensure those values are translated into enforceable rights”.[25]

9. The JCHR report explained that negative reporting in the media may impact public attitudes: “Many of those submitting evidence felt that some influencers in the media were responsible for pushing an unbalanced negative image of human rights” and “There is evidence that the negative framing of human rights has a demonstrable impact on public attitudes”.[26] 

10. Recent high profile and politically sensitive Strasbourg cases that may have influenced public opinion,[27] include for example Hirst No. 2 v UK (Application no. 74025/01) concerning the blanket ban on prisoner voting; Al-Skeini and Others v UK (Application no. 55721/07) on extra-territorial jurisdiction and the duty to conduct an effective and independent investigation into the deaths of civilians killed in Iraq in incidents involving British armed forces; Othman (Abu Qatada) v UK (Application no. 8139/09) regarding the deportation to Jordan of a terrorism suspect and the risk of ill‑treatment and denial of justice if he were deported; and Vinter and Others v UK (Applications nos. 66069/09, 130/10 and 3896/10) considering whether whole life orders amounted to ill-treatment.

11. Indeed, one of key conclusions of the majority of the Commission on a Bill of Rights (‘BoR Commission’) established by the government in 2011 was that “the most powerful arguments for a new constitutional instrument are the lack of ownership by the public of the existing Human Rights Act and the European Convention on Human Rights, and the opportunity which a UK Bill of Rights would offer to provide greater protection against possible abuses of power”.[28]

12. However, a minority of the Commission expressed a different opinion: “In our view, the Commission as a whole gave insufficient weight to the totality of views received, and in particular those coming from the devolved nations”.[29] They therefore concluded that

“We have already noted that the evidence before the Commission does not support the conclusion that there is an ‘ownership’ issue across the United Kingdom. Even if it did, we are not persuaded that a mere re-branding would address the underlying concerns of some of our colleagues. Rather, we fear that the issue of ‘ownership’ is being used to promote other aims, including the diminution of rights available to all people in our community, and a decoupling of the United Kingdom from the European Convention”.[30]

13. There is clearly a need to reframe the UK debate and improve media reporting of UK human rights cases; something which the BoR Commission recognised – “All of us believe that there is indeed a role for better public education and understanding of the present human rights structures and their effect” – though the majority did not think this would be sufficient to significantly change public perceptions.[31]

14. Ultimately, this conversation is set in the context of a wider backlash against international standards and institutions, and Brexit and the loss of the EU Charter of Fundamental Rights (the ‘EU Charter’) will provide an opportunity to consider the domestic status of other international human rights obligations post-Brexit.

Public authorities and human rights – Have sections 6 and 19 HRA made a difference?

15. Section 6 HRA requires public authorities to act in a way which is compatible with Convention rights. This provision was introduced because at the time, as stated in the White Paper accompanying the Human Rights Bill, there was “no requirement in [UK] domestic law on central and local government, or others exercising similar executive powers, to exercise those powers in a way which is compatible with the Convention”.[32]

16. So, is there now a human rights culture in administrative decision-making? Further research is needed to understand the full spectrum of experience. However, it has been noted that “Some public authorities have used the HRA as a basis for making decisions, balancing competing interests, setting priorities, training staff, designing services and interacting with people using those services – sometimes with transformative results”.[33] However, it is cautioned that “At the same time, the impact of the HRA on public authorities should not be overstated” because “In many, a minimal, risk-based approach to human rights compliance has taken precedence over a positive culture of implementation”.[34]

17. The work of civil servants impacts on the daily lives of ordinary people and the delivery of public services, and there is opportunity here for new training approaches to promote greater legal awareness. As the JCHR’s 2018 report ‘Enforcing Human Rights’ observed, “The degree to which section 6 is performing this function appears to be patchy as it depends on awareness and training of public officials, which can vary according to the public authority”.[35]

18. Under Section 19 HRA a minister introducing a Bill into Parliament is required to give a statement that the Bill is either compatible with Convention rights or that it is incompatible but that the Government nevertheless wishes to proceed. This statutory requirement was aimed at encouraging policy-makers to consider the impact of specific legislative proposals on Convention rights. It has been commented that this ministerial obligation serves two purposes: to encourage ministers and officials to consider the human rights implications of their proposals; and to foster debate in parliament.[36]

19. We have not been able to locate statistics on the number of ministerial declarations of (in)compatibility made since the coming into force of the HRA. However, one researcher has noted that, as a consequence of the barriers affecting the impact of Section 19 (such as the volume and complexity of legislation) Parliament has enacted legislation that has negatively affected and sometimes breached Convention rights.[37]

20. Indeed, as part of its legislative scrutiny work, the JCHR has highlighted instances of legislative proposals which are not in line with Convention rights. For example, when introducing the Counter-Terrorism and Border Security Bill in the House of Commons in June 2018, the government made a statement under Section 19 HRA that the provisions of the Bill were compatible with Convention rights. However, the JCHR stated that “This Bill strikes the wrong balance between security and liberty. We doubt whether, as currently drafted, the Bill is compliant with the Convention”.[38]

21. To give another recent example, in July 2017, the government made a statement under Section 19 HRA that the provisions of the European Union (Withdrawal) Bill were compatible with Convention rights.[39] Following this, in December 2017 the government published a Charter ‘Right by Right’ Analysis Paper which looked at the effect of the provisions of the Withdrawal Bill which relate to the EU Charter and in particular how fundamental rights that are currently protected by EU law will be protected following Brexit.[40] Then, in January 2018 the government published an ECHR Memorandum which addressed issues arising under the ECHR in relation to the Withdrawal Bill.[41] However, the JCHR was critical of the government’s approach noting that “the Government has retrospectively carried out its analysis of the human rights implications nearly five months late having been pressed for clarity by this Committee” and that this “implies that the Government’s decision to exclude the Charter whilst retaining nearly all other EU law was taken without having done a comprehensive analysis of the implications for the protection of rights”.[42]

22. Going forward, therefore, it has been suggested that it will be important to improve understanding of Section 19 in order to “facilitate more confident use of the roles already available to the Executive and Parliament through the system of statements of compatibility”.[43] It is noted, for example, that the JCHR has repeatedly called for government to provide more information about the reasons for its statements of compatibility[44] and for Human Rights Memorandums to accompany draft legislation.[45] It is suggested that this would encourage parliamentary debate and more rigorous scrutiny of legislation from a human rights perspective.[46]

What are the current proposals for reform of the UK’s human rights framework?

23. In its 2014 paper ‘Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’, the Conservative Party proposed, among other things, to repeal the HRA and introduce a new British Bill of Rights and Responsibilities, and to “Break the formal link between British courts and the European Court of Human Rights”.[47] In its 2017 manifesto the Conservative Party drew back slightly stating “We will not repeal or replace the Human Rights Act while the process of Brexit is underway” and “We will remain signatories to the European Convention on Human Rights for the duration of the next parliament”.[48] In December 2017 the government stated that it will “consider our human rights legal framework further when the process of leaving the European Union (EU) concludes, and consult fully on proposals in the full knowledge of the new constitutional landscape”.[49] The implication remains however, that the current government has not ruled out changes to the UK’s system of human rights protection in the medium to longer term.[50]

24. In contrast, the White Paper accompanying the Human Rights Bill noted that “The United Kingdom played a major part in drafting the Convention, and there was a broad agreement between the major political parties about the need for it” and that “The United Kingdom was among the first group of countries to sign the Convention. It was the very first country to ratify it, in March 1951”.[51] Indeed, it has been commented that “Perhaps in 1997-98 there was optimism and an expectation that the application of ‘Convention rights’ by British judges would be sufficient to infuse human rights protection in the UK with a newfound respect as far as the public were concerned”.[52] What then are the key concerns and are they well-founded?

The “living instrument” principle – Does it undermine the role of UK institutions?

25. When the Human Rights Bill was introduced into Parliament, the accompanying White Paper noted that “The Convention is often described as a “living instrument” because it is interpreted by the European Court in the light of present day conditions and therefore reflects changing social attitudes and the changes in the circumstances of society”.[53] The White Paper envisaged a clear role for UK courts and stated that “In future our judges will be able to contribute to this dynamic and evolving interpretation of the Convention”.[54]

26. However, in its 2014 paper ‘Protecting Human Rights in the UK’, the Conservative Party stated that “the ECtHR has used its ‘living instrument doctrine’ to expand Convention rights into new areas, and certainly beyond what the framers of the Convention had in mind when they signed up to it”.[55] It noted that “There is mounting concern at Strasbourg’s attempts to overrule decisions of our democratically elected Parliament and overturn the UK courts’ careful applications of Convention rights”.[56]

27. This view is not however widely shared. In its 2018 report ‘Enforcing Human Rights’, the JCHR reported that “The majority of those who submitted evidence to us did not share this viewpoint. They rather asserted the ‘living instrument’ principle to be an important one, without which the framework would risk becoming irrelevant and ineffective”.[57] Similarly, it was noted that “When we asked senior retired judges about their experiences of the ‘living instrument principle’, they agreed that interpreting legislation in light of modern circumstances was a necessity which did not cause any serious problems in practice”.[58]

28. It is a question of degree. For example, as Lady Hale stated in a 2011 speech:

“So what are the limits to the growth of the living tree? … The key element, it seems to me, is that the development should be a predictable one. It should not contradict the express language of the Convention. It should be consistent with the established principles of Convention jurisprudence. It should also be consistent with the standards set in other international instruments … It should reflect the common European understanding, however that may be deduced. And it should seek to strike a fair balance, between the universal values of freedom and equality embodied in the Convention, and the particular choices made by the democratically elected Parliaments of the member states”.[59]

29. On balance, it is clear that the living instrument doctrine has enabled the Strasbourg Court to keep pace with evolving social attitudes. For example, Delfi AS v Estonia (Application No. 64569/09) was the first case examining a complaint about liability for user-generated comments on an internet news portal. The Grand Chamber ultimately found no violation of Article 10. In Mennesson v France (Application No. 65192/11) the Court found that the refusal by the authorities to recognise the parent-child relationship where the children were born by surrogacy arrangements abroad violated Article 8 as regards the private life of the children. In Y.Y. v Turkey (Application No. 14793/08) the Court found that the refusal by Turkish authorities to authorise gender reassignment surgery for a transgender person violated Article 8. In Chowdury and Others v Greece (Application No. 21884/15) the Court found that the situation of irregular migrants in that case amounted to human trafficking and forced labour, and that Greece had failed to fulfil its positive obligations in violation of Article 4(2). In S and Marper v UK (Applications Nos. 30562/04 and 30566/04) the Grand Chamber found that the blanket retention of fingerprints, cell samples and DNA profiles after acquittal or discontinuation of criminal proceedings violated Article 8. Finally, in Karner v. Austria (Application No. 40016/98) the Court found that the refusal to recognise a right to succeed to a tenancy after the death of a same sex partner violated Article 14 in conjunction with Article 8.

Interpretation of Convention rights – Has Section 2 HRA undermined the role of UK courts?

30. Under Section 2 HRA courts and tribunals “determining a question which has arisen in connection with a Convention right must take into account” any judgments of the Strasbourg Court. The White Paper accompanying the Human Rights Bill made clear that “In considering Convention points, our courts will be required to take account of relevant decisions of the European Commission and Court of Human Rights (although these will not be binding)” [emphasis added].[60] However, the Conservative Party’s 2014 Paper ‘Protecting Human Rights in the UK’ argued that the HRA “undermines the role of UK courts in deciding on human rights issues in this country” and that Section 2 means “problematic Strasbourg jurisprudence is often being applied in UK law”.[61]

31. However, Section 2 HRA is “cast deliberately in terms which do not require strict adherence to Strasbourg jurisprudence”.[62] Indeed, the White Paper clearly envisaged a role for UK judges in interpreting Convention rights and thereby also influencing the jurisprudence of the Strasbourg Court. For example, the White Paper anticipated that “British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe”.[63] Others have noted that “The pre-legislative history … shows that the government intended from the outset that the domestic courts should take their own independent approach to Convention rights, and should develop a distinctive indigenous human rights jurisprudence”.[64]

32. However, Section 2 was subsequently interpreted as requiring much stricter adherence to Strasbourg case law. For example, as one commentator has noted, “once the HRA came into force… Lord Bingham decided to champion the view that the English courts should strive to apply the case law of the ECtHR and, in effect, ‘mirror’ the reasoning of Strasbourg decisions”.[65] The example often cited here is Lord Bingham’s statement in R (on the application of Ullah) v Special Adjudicator (2004 UKHL 26): “While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court… The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”.[66]

33. However, reporting in 2012, the BoR Commission found that “there is now a view amongst some commentators that our courts have worked their way back to the position which they believe Parliament clearly originally intended that they should take into account, but not necessarily be bound by, the jurisprudence of the European Court of Human Rights in determining cases before them under the Act”.[67] Similarly, one commentator noted in 2013 that “It is important to remember that given the delays in the Convention system, and the fact that the HRA has only been in force since 2 October 2000, it is only in the last few years that real dialogue between the courts has started to emerge”.[68] She emphasised “it is clear that as the higher courts, in particular the Supreme Court, gain in confidence with their role under the HRA, the exchange between the courts is moving from one of monologue and consensus to one where, in certain defined instances, dialogue is sought, and eventually does take place”.[69]

34. Case examples often cited in this regard include, for example, R v Horncastle and Others (2009 UKSC 14) concerning hearsay evidence in which the UK Supreme Court unanimously dismissed the appeals before them and declined to follow the Strasbourg Court’s 2009 chamber judgment in Al-Khawaja and Tahery v UK (Applications nos. 26766/05 and 22228/06). In the UK Supreme Court Lord Phillips stated:

“The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case”.[70]

35. In 2011 in Al-Khawaja and Tahery the Strasbourg Court’s Grand Chamber modified the lower chamber’s earlier ruling and Judge Bratza in a concurring opinion stated “The present cases afford, to my mind, a good example of the judicial dialogue between national courts and the European Court on the application of the Convention to which Lord Phillips was referring”.[71]

36. Will this shift in approach change attitudes towards the HRA? One commentator has warned, “It would be unfortunate, to say the least, if, in spite of the increasing evidence in favour of the dilution of the mirror principle, continued perceptions of rigidity and undue deference to Strasbourg contributed to the premature demise of the HRA”.[72] It is therefore to be hoped that tensions between the national and regional levels may decrease as a result of more dialogue between national and European judges, and the greater prominence given to the principles of subsidiarity and the margin of appreciation as a result of the ongoing process of reforming the Court and Convention system, which is discussed in the next section.

Is there sufficient emphasis on the principles of subsidiarity and margin of appreciation?

37. The principle of ‘subsidiarity’ underlines that the “primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities” and that the “machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights”.[73] Strasbourg case law also makes clear that States Parties “enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged” which reflects that they are “in principle better placed than an international court to evaluate local needs and conditions”.[74]

38. In its 2014 paper ‘Protecting Human Rights in the UK’, the Conservative Party stated that it would “End the ability of the European Court of Human Rights to force the UK to change the law” and that “Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement”.[75] It also stated that it would seek recognition from the Council of Europe that its approach is “a legitimate way of applying the Convention” and that if it were not able to reach agreement, the UK “would be left with no alternative but to withdraw from the [ECHR]”.[76]

39. In part, this critical view stemmed from a perception that the Strasbourg Court was “going beyond its brief” and that it had “interpreted some Convention rights too expansively and added others that were not intended to be included at all, thereby intruding unacceptably into the domestic jurisdiction of states”.[77]

40. It also resulted from high profile decisions such as the Grand Chamber’s judgment in Hirst No. 2 (discussed above) which found that the UK’s blanket ban on prisoner voting violated Article 3 of Protocol No. 1 to the Convention. It has been commented that the case demonstrates “the pressure that Convention membership can place on the ‘Westminster model’ and parliamentary sovereignty, and the potential for the Convention to act like a European bill of rights, occasionally overriding the will of British MPs”.[78] However, as the Strasbourg Court emphasised in Hirst No. 2, while “the margin of appreciation is wide, it is not all-embracing” and that “a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be”.[79] That said, the UK was in fact given a wide margin of appreciation to resolve the incompatibility. As the Strasbourg Court stated:

“In a case such as the present one, where Contracting States have adopted a number of different ways of addressing the question of the right of convicted prisoners to vote, the Court must confine itself to determining whether the restriction affecting all convicted prisoners in custody exceeds any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1”.[80]

41. In fact, it has been suggested that “Strasbourg’s decisions concerning voting eligibility reflect timidity, where a democracy-enhancing approach requires rigorous scrutiny”.[81]

42. As noted above, the numbers of adverse judgments in UK cases are actually very low and from 1959-2017 the UK has the second highest number of judgments finding no violation of all 47 member states. As one commentator has noted “the statistics do not bear out the assertion… that the ECtHR is increasingly prone to overrule decisions taken by UK authorities”.[82] Similarly, the JCHR observed in 2014 that in an increasing number of recent UK cases, the Strasbourg Court has “demonstrated its willingness to defer to the reasoned and thoughtful assessment by national authorities (including Parliament) of their Convention obligations, resulting in legislation being upheld as being within the UK’s margin of appreciation”.[83]

43. This is evidenced for example in cases such as Animal Defenders International v UK (Application no. 48876/08) in 2013, which concerned the prohibition on paid political advertising in UK law and where the Grand Chamber, by nine votes to eight, found no violation of Article 10 ECHR. The Court considered the domestic examination of the issues and stated that it “attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process”.[84]

44. Similarly, in 2014 in Jones and Others v UK (Applications nos. 34356/06 and 40528/06) the ECtHR upheld the House of Lords’ decision to grant state immunity in respect of civil proceedings concerning allegations of torture and held that there was therefore no violation of Article 6 ECHR. The European Court commented on the UK court’s consideration of the case. It stated that “In the present case, it is deemed clear that the House of Lords fully engaged with all of the relevant arguments concerning the existence, in relation to civil claims of infliction of torture, of a possible exception to the general rule of State immunity”[85] and that “In these circumstances, the Court is satisfied that the grant of immunity to the State officials in this case reflected generally recognised rules of public international law”.[86]

45. In addition, since 2010, there have been six major conferences on the future of the Court and Convention system (Interlaken, Izmir, Brighton, Oslo, Brussels and most recently Copenhagen),[87] and the primary responsibility of national institutions for securing Convention rights has been emphasised during this ongoing reform process.

46. For example, the Brighton Declaration 2012 concluded that references to the principle of subsidiarity and the margin of appreciation doctrine should be included in the Preamble to the Convention, and emphasised the “shared responsibility” of the Court and the States Parties for applying the Convention.[88] Article 1 of Protocol No. 15 to the Convention adds a new recital to this effect to the Preamble[89] and will enter into force when all States Parties have signed and ratified it.[90] The Brussels Declaration 2015 also emphasised the “primary responsibility of the States Parties to ensure the application and effective implementation of the Convention” in accordance with the principle of subsidiarity.[91] Furthermore, the entry into force for some states on 1 August 2018 of Protocol No. 16 – which allows the highest domestic courts and tribunals to request advisory opinions from the European Court – is another important development which will assist in dialogue between the national and regional levels.[92]

47. The JCHR has welcomed the amendment to the Preamble as signifying “a new era in the life of the Convention, an age of subsidiarity, in which the emphasis is on States’ primary responsibility to secure the rights and freedoms set out in the Convention”.[93] Similarly, Judge Robert Spano wrote in a 2014 journal article that “Animal Defenders, and the line of cases of a similar nature, demonstrate in my view that the Strasbourg Court is currently in the process of reformulating the substantive and procedural criteria that regulate the appropriate level of deference to be afforded to the Member States so as to implement a more robust and coherent concept of subsidiarity in conformity with Brighton and Protocol 15”.[94]

Legislative interpretation – Have Sections 3 and 4 HRA undermined parliamentary sovereignty?

48. Under Section 3 HRA “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Under Section 4 HRA if a court determines that a provision of primary legislation is incompatible with a Convention right, it may make a “declaration of incompatibility”. Importantly, courts and tribunals are included in the definition of “public authorities” for the purposes of Section 6 HRA and so it would be unlawful for them “to act in a way which is incompatible with a Convention right”.

49. It has been commented that despite the “clear instruction” from Parliament encapsulated in these provisions, “the role of domestic courts in upholding Convention rights can bring them into conflict with the UK’s Parliament and executive branches”.[95] The example given is A and Others v Secretary of State for the Home Department (2004 UKHL 56) (the Belmarsh case), concerning the indefinite detention of foreign prisoners in the UK, where the declaration of incompatibility issued by the court was severely criticised by government.[96]

50. In its 2014 paper ‘Protecting Human Rights in the UK’, the Conservative Party stated:

“Labour’s [HRA] undermines the sovereignty of Parliament, and democratic accountability to the public. Although, the HRA affirms the sovereignty of the UK Parliament over human rights matters, Section 3(1) undermines Parliamentary sovereignty in practice. This provision requires UK courts to read and to give effect to legislation in a way which is compatible with Convention rights, “so far as it is possible to do so”. There are cases in which, due to this rule, UK courts have gone to artificial lengths to change the meaning of legislation so that it complies with their interpretation of Convention rights, most often following Strasbourg’s interpretation, even if this is inconsistent with Parliament’s intention when enacting the relevant legislation”.[97]

51. However, the scheme of the HRA in Sections 3 and 4 actually preserves parliamentary sovereignty and the separation of powers. Where a court makes a declaration of incompatibility, the law continues in force until Parliament decides whether to address the incompatibility and, if so, how. As was made clear in the White Paper accompanying the Human Rights Bill “The Government has reached the conclusion that courts should not have the power to set aside primary legislation, past or future, on the ground of incompatibility with the Convention. This conclusion arises from the importance which the Government attaches to Parliamentary sovereignty”.[98] The government has itself recently explained that Section 4 HRA “respects the supremacy of Parliament in the making of the law” and “there is no legal obligation on the Government to take remedial action following a declaration of incompatibility or on Parliament to accept any remedial measures the Government may propose”.[99]

52. The Bill of Rights Commission reported that the declaration of incompatibility mechanism “has been widely seen as striking a sophisticated and sensible balance between Parliament and the courts – indeed one that has subsequently been adopted by a number of other common law jurisdictions”.[100]

53. Moreover, the statistics do not bear out the criticism. 37 declarations of incompatibility have been made since the HRA came into force in October 2000 to the end of July 2017. Of these, 25 have become final; nine have been overturned on appeal; and three are subject to appeal.[101] Of the 25 that have become final: 11 have been remedied by later legislation; five concerned provisions already remedied at the time of the declaration; three have been remedied by remedial order; the government is proposing to remedy one by remedial order; and five are under consideration as to how to remedy the incompatibility.[102]

54. As one commentator has noted, “In no instance to date, then, has Government or Parliament affirmatively chosen not to remedy legislation following a declaration of incompatibility, as they have the option of doing under the HRA” [emphasis in original].[103]

The loss of the EU Charter of Fundamental Rights after Brexit

55. In terms of future challenges for the protection of human rights in the UK, the wider context is the loss of the EU Charter after Brexit. Although there is overlap between the EU Charter and the ECHR / HRA, there are important procedural and substantive differences.[104]

56. First, under the HRA only an individual who is a “victim” of a rights violation can bring a claim; whereas anyone with “sufficient interest” can apply for judicial review based on the Charter. Second, as noted above, under Section 4 HRA, where a court makes a declaration of incompatibility, the law continues in force until Parliament decides whether and how to address the incompatibility; in contrast, the Charter may provide a stronger remedy. Third, under the HRA / ECHR, a claimant must exhaust all domestic remedies before they can bring a case to the Strasbourg Court;[105] whereas any UK court or tribunal can involve the EU’s regional court, the Court of Justice of the EU, by way of the preliminary reference procedure.[106] Fourth, the Charter may be of narrower application – it applies to the Member States only when they are implementing EU law – but it contains some novel rights which have no equivalent in the HRA / ECHR (for example, media plurality in Article 11, freedom to choose an occupation and engage in work in Article 15, and freedom to conduct a business in Article 16).[107]

57. As regards the loss of the EU Charter, the Bingham Centre has previously commented:

“It is clear beyond doubt that non-retention of the Charter will lead to a loss of the current level of rights protection available to individuals and businesses under EU law, in at least three ways. First, the Charter protects rights that do not otherwise enjoy clear legal protection, such as the right to protection of personal data. Second, the Charter provides a direct cause of action in respect of those rights including access to legal remedies. Third, as a matter of EU law those legal remedies currently include a power in the courts to disapply legislation”.[108]

58. More broadly, it has been stressed that “the main loss for the UK legal order might be found in the Charter’s yet unfulfilled potential” as the “sheer breadth of rights (and principles) offered in the Charter and their often broader formulation compared with corresponding rights contained in the ECHR, suggest a large potential for stronger human rights protection than currently available, from which the UK and the people living there are likely to be excluded”.[109]

59. Against this background, therefore, it remains to be seen whether and how the gaps left in the UK human rights framework by the loss of the EU Charter will be addressed through the framework of the HRA and the common law.

Current proposals for reform and implementation of ECtHR judgments

60. As already discussed above, future challenges also include government proposals to reform the UK’s human rights framework.

61. A particular source of tension between the UK and the Strasbourg Court has been the UK’s prolonged non-implementation of the prisoner voting group of cases, discussed above, which has undermined the rule of law and posed significant challenges for the credibility and legitimacy of the wider Convention system. However, in December 2017, the Committee of Ministers (the regional body responsible for supervising the execution of ECtHR judgments) accepted the UK government’s proposed package of measures in relation to the prisoner voting cases.[110] The government’s announcement[111] of plans to allow some offenders to vote came some 12 years after the Grand Chamber’s judgment in Hirst No. 2. However, it has been noted that the proposed measures are very limited in effect;[112] and some will question whether the proposals go far enough and whether this compromise risks further undermining the Court’s authority. The Committee has urged the UK to implement the proposals as soon as possible.[113]

62. More broadly, it has been emphasised that (subject to a few notable exceptions including the prisoner voting cases and the McKerr group of cases relating to investigations into deaths in Northern Ireland) the UK in fact has a good record of implementing Strasbourg judgments.[114]

63. For example, at the end of 2016, the UK was responsible for only 0.2% (21) of the 9,941 pending judgments before the Committee of Ministers.[115] In 2017, the figure was again 0.2% (18 out of 7,584 pending cases).[116] This placed the UK 29th out of 47 for the number of 2016 and 2017 pending cases (with 1st being the highest number of pending cases).[117] In addition, in 2016 all payments of just satisfaction were made within the three month timeframe.[118] In 2017 there were five payments within the deadline and only one payment outside of the deadline.[119]

Concluding remarks

64. Some 20 years after it was enacted the future of the UK’s Human Rights Act is uncertain. The Conservative Party’s proposals to repeal the HRA and withdraw from the Convention are on hold for the moment but the implied threat remains. This is set within the wider context of a backlash against international standards and institutions more generally, as well as Brexit and the loss of the EU Charter of Fundamental Rights. Any proposals to reform the UK’s human rights framework need to be considered in this broader context in order to minimise the impact on the protection of human rights and to maintain legal certainty.

65. Some have suggested that Brexit may make ECHR withdrawal easier for the UK.[120] However, others have noted the importance of shared human rights standards for the future EU-UK relationship.[121] So it remains to be seen how the future of the Convention in the UK legal system will feature in the ongoing Brexit negotiations.

66. Furthermore, retaining the Convention would allow UK judges to continue to develop a constructive dialogue with their counterparts in Strasbourg and to influence the European Court’s case-law. In addition, there is a real risk of contagion whereby other states also begin to challenge the Convention system and it has been emphasised, for example, that, if the UK were to withdraw, “The greatest risks would be that the UK would find it very difficult to persuade other states to abide by international human rights norms if it was not to do so itself and that the whole ECHR system might collapse, or be considerably weakened, as a result”.[122]

67. Finally, and as demonstrated above, many of the criticisms levelled at the HRA and the Convention system are not borne out in practice. In particular, the number of judgments and adverse judgments from the Strasbourg Court against the UK are very low and in general the UK’s record of implementing Strasbourg judgments is actually very strong. Therefore, and in light of increased dialogue between national and European judges and the greater prominence given to the principles of subsidiarity and the margin of appreciation as a result of the ongoing reform process, it is hoped that tensions between the national and regional levels may decrease.

24 September 2018

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