The Conservative’s general election manifesto included a proposal in relation to the Human Rights Act ECHR and the Prime Minister has stated that “Our intention is very clear: it is to pass a British Bill of Rights, which we believe is compatible with our membership of the Council of Europe.” Some six months after the election, no such Bill has emerged despite this being an apparent Government priority. However, The Sunday Times of 8 November carried a story on its front page headed “Human rights law to be axed”. How is the topic now developing?
The Human Rights Act 1998 (HRA) came into force in 2000 and incorporated into British law the European Convention on Human Rights (ECHR). The Convention is said to be one of the great international legal instruments of the 20th century. Fast-forward to 2015 and the HRA is not without problems or its political opponents. It might also be noted in passing that 2015 is also the 800th anniversary of Magna Carta, in which the roots of the ECHR’s right to a fair trial (Article 6) would appear to be found in its prohibition of punishment “except by the lawful judgment of his equals or by the law of the land” (British Library’s translation of its clause 39.)
Sometimes it appears little understood that UK courts are not formally bound by judgments of the European Court of Human Rights in Strasbourg as they are bound by judgments of the entirely different Court of Justice of the EU Luxembourg. UK courts need to interpret and apply the ECHR and, under section 2 of the HRA, “must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights”. That said, it is not unknown for the Council of Europe Ministers (which is entirely distinct from both the European Commission and the EU) to warn the UK that defying a Strasbourg judgment would breach human rights commitments and international legal obligations.
The UK, however, has traditionally complied with nearly all Strasbourg decisions which, in some instances, leads to significant adverse comment in the centre-right-leaning media in particular. For example, when Strasbourg ruled that Iraqi prisoners were entitled to protection under the Convention because Basra was under the direction and control of British Armed Forces. A large number of compensation claims followed and were brought by Iraqi insurgents against the MoD for being held without charge, not being fed properly, suffering sleep deprivation, shouted at and made to stand for an unreasonable time during interviews (incidentally, some of the Iraqis were detained by British Forces at the request of the Iraqi authorities). In contrast, the Al Sweady Inquiry concluded – after five years and at a cost to the taxpayer of £25 million – that British soldiers had not abused Iraqis involved in a firefight in 2004 and subsequently detained in a British camp (the incidents were known as The Battle of Danny Boy).
It was widely reported in May and June this year that the Prime Minister was keen to move fast to capitalise on his general election victory by introducing key elements of the Tory manifesto. There was however, no mention in the Queen’s Speech of a Bill to scrap the Human Rights Act, which may have been due to opposition from Conservative backbenchers. The Queen said merely that “My government will bring forward proposals for a British Bill of Rights.” A widely-held view that the time was that a Bill was pulled on the basis that it was too difficult.
On 8 September in the House of Commons Justice Minister Dominic Raab said that the Government “will bring forward proposals on a Bill of Rights this autumn. They will be subject to full consultation. The preparation is going well.” It should be noted that he referred to “proposals”, as had the Queen’s Speech. This would appear to suggest that a formal draft Bill is unlikely to accompany the consultation paper referred to by the Minister.
MPs made it clear they expect far more than the plans offered up by former Justice Secretary Chris Grayling in October 2014, which were described as “unworkable” and “bewildering” and were said to contain “a number of howlers”. Mr Raab refused to be drawn into answering a question that those plans had been “written on the back of a cigarette packet from the very start.” He did, however, give an assurance that the Government “will take our time to get the plans right, and we will take on board all the views that have been expressed”. He added that the aim of the Government’s proposed British Bill of Rights is to restore balance to the UK’s human rights regime. And in a written reply dated 5 November Mr Raab added that “Our Bill of Rights will protect fundamental human rights, and prevent abuse of the system. The Government will fully consult on our proposals before introducing legislation and we will set out our proposals in due course.”
That said, at the moment, there is no public material indicating what the British Bill of Rights would contain, how it might work, and how it would relate to the ECHR, if at all. What is clear is that the proponents of change (which would appear to include a good proportion of the UK’s population) wish that foreign criminals should be more easily deported from Britain, that the ECHR should not server as a criminal’s charter and that the Supreme Court should be the ultimate arbiter of human rights matters in the UK.
The recent Sunday Times report seems to suggest that momentum may have returned to this topic, even if the MoJ has dismissed that as “speculation”, despite the Minister’s short statement only last week (above). The newspaper says that consultation is due to begin next month – which just about fits with the timetable set out by Dominic Raab in September – and that the measures to be set out will include:
- confirmation that the UK will remain a signatory to the Convention
- allowing the courts to rely on the common law of the UK and other Commonwealth countries rather than having, according to the Times, to “follow rulings [from] Strasbourg slavishly”
- limiting protection to the UK only and possibly excluding protection from overseas missions by the armed forces
- proposals to reduce the amount of compensation that can be claimed for ECHR breaches, and
- protecting public authorities from vexatious claims for human rights breaches.
If we were to offer an end of term report on this topic some six months after the election it might read as follows: ‘Sluggish start with recent signs of improvement. Written work needs to improve but structure of the end of year assignment indicates promise.’
We shall continue to report on progress with the consultation via this blog.
About the Author
Jef Mitchell is a consultant at BLM and former Chief Claims Officer at the Ministry of Defence where he regularly briefed Ministers on claims issues and risk management. He now helps to lead the firm’s Policy and Government Affairs work with Alistair Kinley preparing submissions and supporting evidence for consultations and reform proposals, in addition to liaising with government departments and regulators on key issues and consultations affecting the firm and its clients. Jef is also an accredited mediator.