Full of sound and fury on human rights

by Carl Gardner on October 3, 2014

Chris GraylingThe Conservative plan for a “British Bill of Rights and Responsibilities” is finally being made clear today. Here is the full Tory policy document, with my detailed comments. The tone of the proposals is harsh and uncompromising, and politically calculated to be. Lawyers will be shocked, and yes, some of their clients will be worse off. Tory Eurosceptics and tabloids will be jubilant, and potential UKIP voters impressed.

But the noise and drama of the policy isn’t backed up by its substance. If the acid test is whether the plan would prevent another Abu Qatada or prison votes row – then it fails.

Overview

The broad description of the policy is that it would

Repeal Labour’s Human Rights Act

and

Put the text of the original Human Rights Convention into primary legislation.

Taken with the rest of the proposals, it’s clear the Conservatives have plumped for what I called Option 2 in my piece earlier this week: a cosmetic rebranding and fairly substantial amendment of the Human Rights Act. But nothing in this policy paper would affect the UK’s position in international law: it does not involve withdrawal from the European Convention on Human Rights, or leaving the jurisdiction of the European Court.

The key changes intended are as follows:

  • UK judges would no longer have to take European Court of Human Rights judgments into account in our courts;
  • some European Court judgments would be treated as just advisory, rather than as binding on the UK – a special Parliamentary procedure would be set up to consider whether to comply with them;
  • UK judges would lose the ability to “reinterpret” Acts of Parliament so they comply with human rights;
  • the Bill would only apply on UK territory, so no human rights challenges could be brought in our courts to the conduct of British forces abroad;
  • Ministers would no longer be required to comply with international law or the UK’s treaty obligations;
  • human rights would only apply in “serious” cases, not in “trivial” ones, and
  • it’d be made easier to remove people from the UK by changing legal tests about the risk of torture, inhuman and degrading treatment, and by ending the ability of some criminals to argue that they have family ties here.

Here’s my analysis of those proposals, taken from the document.

The UK effect of Strasbourg cases

One of the key changes in the new British Bill of Rights would be to

Break the formal link between British courts and the European Court of Human Rights. In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg.

This would be a change from the current situation under the Human Rights Act, under which judges must “take into account” Strasbourg rulings. But it’s not quite as radical a change as it seems initially. Under this proposal, judges would not be prevented from taking account of a Strasbourg judgments, or from following it – whether they agreed with it or not. So this is not as radical as the change I suggested in my post earlier this week, which was

to make clear that a UK court should only determine a human rights issue in accordance with a Strasbourg ruling if it agrees with that ruling.

“Parliamentary override”

The document tells us the Bill of Rights and Responsibilities would

End the ability of the European Court of Human Rights to force the UK to change the law. 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. It will only be binding in UK law if Parliament agrees that it should be enacted as such.

Again, this sounds very radical, and its language is certainly a slap in the face for the European Court and the rule of law. But its actual effect wouldn’t be as great as the Tories may claim. As things stand, no European Court judgment can result in a change to UK legislation without Parliament’s consent. That’s why prisoners still don’t have the vote. All this would do is trumpet (perhaps by declaratory words) what is already the case.

In fact in some ways this proposal puts more human rights obligations on Parliament than it has under the Human Rights Act. There is currently no legal duty on Parliament to consider any Strasbourg judgment. The Conservatives plan would oblige it to for the very first time.

And notice that it’s only some judgments that will be treated as advisory – those implying that UK law is incompatible with the Convention. Not all judgments against the UK do that, so presumably the others (like Abu Qatada’s case, which was about an individual decision, not the law as a whole) will still be treated as binding.

Most interesting is the question whether Strasbourg decisions granting “interim measures” against the UK under article 39 of the ECHR will continue to be treated as binding. These are like injunctions; in a case like Abu Qatada’s, say, they’re effectively an interim order preventing deportation pending judgment in the very worst cases, where irreparable harm might result to someone if the government simply does what it wants immediately. If these ruling are treated as merely advisory, that would plainly breach the Convention; if they continue to be accepted as binding (which I presume they will, since Parliament surely can’t be expected to debate individual cases like this) then the new rule would do nothing to speed up the removal of someone like Abu Qatada.

Judicial interpretation

I’m surprised by this: I said in my piece on Monday that I doubted the Tories would want to touch the Human Rights Act interpretation rules. But the Bill would

Prevent our laws from being effectively re-written through ‘interpretation’. In future, the UK courts will interpret legislation based upon its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case-law.

It’s perfectly true that this would stop UK judges from amending legislation “by the back door” through interpretation, to make it comply with human rights. That is something that seems instinctively attractive to people who dislike the Human Rights Act and want to limit judicial activism.

But it could well have unfortunate unintended consequences for future Conservative ministers. In many cases it’s clear to British judges that someone’s rights have been breached. The next question is whether that’s because the law’s merely been badly applied, and should not be applied in that particular way; or whether the law breaches human rights in principle. If you conclude the law’s only been badly applied, that problem can be solved by “reading it down”: in future, that law must not be applied in that specific way.

To use the leading case on Human Rights Act interpretation as an example, if judges think old housing legislation discriminates against a gay tenant, they can (and if possible must) rule that it is no longer to be read as permitting the discrimination. But if that option is barred to them, they will in case like that have no option but to declare the legislation incompatible with human rights in principle. Nothing in the Tory policy papers suggests they will remove the power to make such declarations. The result, surely, will be more headlines about judges condemning Parliament for breaching human rights, not fewer – and it will be British, not foreign, judges who do the condemning. I don’t think this has been thought through.

Serious cases only

Another surprise is that the Bill of Rights and Responsibilities would

Limit the use of human rights laws to the most serious cases. The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.

The obvious question here is what’s a “serious” case and what’s a “trivial” one. The line will be hard to draw. In criminal cases you might think it could depend the maximum sentence, except that sometimes important human rights issues are raised by alleged offending that’s not very serious in the scheme of things. The Twitter joke trial would be a good example. In civil cases, you might think monetary limit could work, except that some of the most important cases aren’t about money at all, like cases involving children. And is something like this serious, or trivial? I look forward to the detailed policy on this with interest.

Limitation to UK territory

Conservatives have been infuriated by the way the courts – both here and in Strasbourg – have ruled that Convention rights apply outside the UK, where British forces have control, for instance. So the Bill would

Limit the reach of human rights cases to the UK, so that British Armed forces overseas are not subject to persistent human rights claims that undermine their ability to do their job and keep us safe.

It’s true this would make it impossible directly on human rights grounds to challenge in a British court the conduct of British forces abroad. What it doesn’t do is prevent those cases being taken to the European court – the ECHR would continue to bind the UK abroad – or change the binding effect of those rulings on the UK.

Change to the Ministerial Code

One of the most striking changes proposed, and one that will I think be very controversial indeed, even among a package of controversial ideas, is that

We will amend the Ministerial Code to remove any ambiguity in the current rules about the duty of Ministers to follow the will of Parliament in the UK.

This would not require legislation: in fact a Conservative government could amend the Ministerial Code without consulting Parliament. But the idea that ministers should be free from what the Code calls an “overarching duty on Ministers to comply with the law including international law and treaty obligations” is very serious indeed. Is the intention really to free ministers to order military action, in say Iraq or Syria, regardless of the international law position?

Changing the “real risk” test in torture cases

The papers talks of balancing rights and responsibilities – qualifying rights, in other words, for the “undeserving” – but the only practical examples it gives of what’s intended all involve removing foreign nationals from the UK. We’re told the Bill would bring in

a clearer test in how some of the inalienable rights apply to cases of deportation and other removal of persons from the United Kingdom. The ECtHR has ruled that if there is any ‘real risk’ (by no means even a likelihood) of a person being treated in a way contrary to these rights in the destination country, there is a bar on them being sent there, giving them in substance an absolute right to stay in the UK. Our new Bill will clarify what the test should be …

This is a response to the famous Chahal case which prevents the removal even of suspected terrorists if there’s a real risk they’ll be tortured where they’re sent. The judgment has been an irritant to every government since it was given, and is part of the line of cases on which Abu Qatada relied. There are two problems with this change.

First, by raising the bar for people who fear torture abroad, it would lead to breaches of the Convention at the moment the people in question were deported, if they were. Second, a new rule (say a “balance of probabilities” rule) would be difficult for judges to apply. It’s not that difficult to decide whether an alleged fact in the past probably did or did not happen. Judges are used to doing that, on the basis of direct evidence of what happened. It’s much harder to predict how likely a future event is. There’s a reason why the courts have settled on a “real risk of torture” approach, and I wonder how the Conservatives would expect judges to apply a different one.

And of course in a “real risk of torture” case a future Abu Qatada would still be able to get interim measures against the UK delaying his removal. I don’t think anything at all in these proposals would have changed what happened to him.

Loss of rights for some foreign criminals

The Tories say their Bill of Rights and and Responsibilities would

clarify … limitations on individual rights in certain circumstances. So for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 to prevent the state deporting them after they have served their sentence.

Killers, then, would lose their right to stay in the UK because of family ties. But what about rapists, those guilty of GBH, serial sex offenders, robbers?

Redefining “degrading treatment”

Some terms used in the Convention rights would benefit from a more precise definition, such as ‘degrading treatment or punishment’, which has arguably been given an excessively broad meaning by the ECtHR in some rulings. For example in one case, the simple fact that an individual would have to live in a particular city in Somalia was deemed put him at real risk of degrading treatment.

The case referred to here is I think Sufi & Elmi v UK. The idea of redefining “degrading treatment” does remind you chillingly of attempts to limit the meaning of torture; and I’m not sure the definitions will be easy to draw. Perhaps the Conservatives are relying on the idea that once removed, these people will not take case to Strasbourg (and win there). But there’d be nothing to stop at least some of them applying for interim measures against the UK to delay their removal before it takes place.

Human rights and the Union

One exceptionally tricky aspect of repealing the Human Rights Act is the devolution angle: doing this would make life easier for Westminster and for English councils – but not for the Scottish Parliament, for instance, which would remain bound by the ECHR under the Scotland Act 1998. So when the Conservatives say

We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK

what they mean is that these proposals potentially unravel another thread in the Union. If these proposals go forward, I imagine the Scottish government will seek the devolution of human rights policy so that it can stay loyal to the ECHR if it wants to – but on its own terms, not terms imposed on its by a UK government which itself rejects those terms.

Threat to withdraw from the ECHR

The threat that I called Option 4 remains. The Conservatives say that

During the passage of the British Bill of Rights and Responsibilities, we will engage with the Council of Europe, and seek recognition that our approach is a legitimate way of applying the Convention … In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights

I’m not sure this sabre-rattling is quite as tough as the Conservatives will present it – what the UK does in its internal law is no real concern of any non-British representative at Strasbourg, and they won’t be able to “block” this Bill. I don’t think there’s any chance a Tory government would have to withdraw from the Convention during the passage of the Bill.

But that doesn’t mean anyone in Strasbourg will agree that the UK is released from its obligations, or that those obligations have been watered down at all. They won’t have been. Strasbourg would continue making judgments in the same way, and they will bind the UK as they do now.

Full of sound and fury …

This plan would involve a substantial amendment to the Human Rights Act. They sound tough and in some ways worrying, and undoubtedly the language in which the policy is cast makes it sound a direct challenge to the European Court of Human Rights, and to the rule of law.

But I think that masks the truth that many of these changes are sounding brass. In particular, freeing judges not to take account of Strasbourg is softer than the amendment I suggested: it won’t stop them doing so. And treating some judgments as advisory doesn’t actually involve any real change to the current position under the Human Rights Act.

Some immigration cases in our own courts would be affected, yes, as would claims against the forces abroad. But nothing in these proposals would have made a difference in Abu Qatada’s case or over prisoners’ votes – which perhaps isn’t surprising since they don’t pretend to affect the UK’s international law relationship with Strasbourg.

I wouldn’t say the plan signifies nothing; but it’s not as significant at it sounds.

{ 11 comments… read them below or add one }

1 Wolf Baginski October 3, 2014 at 08:30

When I took English Literature O-level, Macbeth was one of the set texts. So I recognise the quote; it comes when Macbeth hears of Lady Macbeth’s death. (Act V, Scene V.)

So we have the death of the once-powerful woman (April 2013, so Maggie is a bit of a stretch, maybe that’s May’s Conference speech), this is the tale told by an idiot, and the next element is Birnam Wood coming to Dunsinane.

If this were a political entertainment, another House of Cards, it would all look incredibly contrived.

2 Phil October 3, 2014 at 10:42

The reference to the Sufi & Elmi case – if that is what it was – is astonishingly disingenuous, bordering on an outright lie. It took me two minutes at bailii.org to establish that the government was proposing to deport the claimants to a war zone at worst & an under-resourced refugee camp at best – and that there were plenty of precedents to refer to.

I think you may be too sanguine about the effects of reining in “reading down”. My interpretation was that the intention was to severely restrict the use of declarations of incompatibility as well – at least, to confine them to ‘serious’ cases (and, presumably, to those who have previously fulfilled their responsibilities as British citizens).

This really is awful stuff. Even the thought that it’s highly unlikely to become law is small consolation – the thought that Grayling & co would actually like it to (or would, at least, like to push the debate in that direction) is deeply depressing.

3 Matt Flaherty October 3, 2014 at 11:26

Your analysis is very nuanced, and perhaps you are right that this signifies very little in practice. But its awfulness lies in its utter contempt for the rule of law and the terrible message that it sends to the member states and the entire world. How dare they?

What you don’t mention, which I know you appreciate, is the lack of regard for the Article 8 rights of the family of those the government seeks to deport. That remains even where the criminal’s rights are watered down.

4 Huw Sayer - Business Writer October 3, 2014 at 14:46

Hi Carl

Thank you for (as Matt Flaherty says) your nuanced analysis. Like Matt, I also fear that the real danger in these proposals lies not so much in the threat to our freedoms and rights (although I think they are more real than you suggest) but in the message it sends to tyrannical regimes around the world.

Perception matters in global diplomacy – and this sends a stark message that human rights are negotiable and disposable – that they can be reinterpreted to suit the prevailing political climate. That human rights should only apply to nice people who you like and who agree with you – that dissenters, agitators and anyone else deemed less than acceptable doesn’t deserve these basic rights.

There are plenty of examples of tyrannies (from Nazi Germany onwards) that build their power on ‘the law’ – where everything they do is strictly legal even when totally abhorrent. How those in power in Russia, China, Egypt and others similarly corrupt regimes must be cheering this morning.

Sadly the Conservatives have left their moral authority in tatters on the conference floor. I for one don’t want them do the same for the UK’s moral authority. Cameron should listen to Ken Clarke and Dominic Grieve before he allows Theresa May and Chris Grayling to do any more damage.

Kind regards

Huw
@HuwSayer
@Business_write

5 Carl Gardner October 3, 2014 at 15:56

Matt,

I certainly agree about the message and the tone. And you make a good point about the rights of families. The paper just talks about killers, but I wonder how wide they’d want to make the category of foreign offenders who’d lose family life rights.

6 Carl Gardner October 3, 2014 at 15:59

Huw,

I certainly agree with you about the message. My aim isn’t to be Pollyannaish about all this: I find these proposals depressing too. It’s that I’m not sure they’re quite like the picture on the tin, and I thought the most value I could add to discussion would be to explain why I think that.

7 Huw Sayer - Business Writer October 3, 2014 at 16:19

Hi Carl

Thank you – appreciate you replying – and I think you were right to do the balanced analysis of the detail (I certainly didn’t think you were being Pollyannaish – far from it). Unfortunately the outside world won’t look at the detail – at least the mouthpieces for repression won’t – they will simply repeat the headlines from the British press as justification for their own selective interpretation of human rights law.

Kind regards

Huw

8 Brian - Attorney Blogger October 3, 2014 at 17:39

Ministers would no longer be required to comply with international law or the UK’s treaty obligations;

That’s an interesting one. I thought part of upholding human right is to with international law, especially, with developed countries in the West?

9 Andy J October 3, 2014 at 18:20

Guardian readers may wish to stop here.
My understanding of the Tories’ proposal is that the ‘main’ Articles (ie the ones which speak about rights rather than the obligations of the signatories or procedural issues under the Convention) would be transposed into their Bill of Rights.
On that basis let’s look at the black letter text of Article 8 since Matt Flaherty raised that as an example:
“1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Can anyone explain to me in what way the broad exceptions in paragraph two differ from the grounds which the Tories are proposing for deporting non-UK nationals? Incidentally I am aware of Article 1 of Protocol 7, but I don’t think that it substantially alters my argument.
Clearly the drafters of the Convention felt it was OK to deprive aliens of their political rights (Art 16) when it suits the contracting states. They didn’t even feel the need to add conditions to this. To me that signals that the drafters (and by extension the signatories) of the Convention already had a mindset which differentiated between a country’s citizens and ‘others’ when it came to the application of the Articles. The idea that there might be one rule for the citizens of the contracting states, and the rest of the world would seem to fit in with the Tory plan to limit the application of their Bill of Rights to activities occurring only within the UK. Why should a citizen of Kenya or Diego Garcia who is not domiciled here have access to the protections of the EHCR?
And can anyone point to the exact text in the Articles which says that prisoners are to be afforded the right to vote? (yes, yes I know about Art 3 of Protocol 1, but that doesn’t mention prisoners, in just the same way it doesn’t mention having a minimum age for voters, or participation in referendums). Obviously that was a rhetorical question, because this ‘right’, along with the ‘right’ to the prospect of a review of life sentences, does not appear anywhere in the text of the Articles, but is effectively new law created by the Court. That is not interpretation, that is re-writing the law.

10 Tokyo Nambu October 3, 2014 at 18:52

“The paper just talks about killers, but I wonder how wide they’d want to make the category of foreign offenders who’d lose family life rights.”

How about all of them? Let’s say “anything which carries a potential sentence of more than three months”? Don’t want to be thrown out of the country because you’ve committed a crime? Don’t commit a crime. Don’t want your family life disrupted by your criminal partner’s deportation? Don’t have children with criminals. It doesn’t seem very difficult.

I think driving over children, dragging their bodies down the street and then leaving them to die while you run away is bad. You don’t, and that’s your idea of decent behaviour deserving of this country’s hospitality. We get that. The point is, that nobody, aside from lawyers who make money out of fighting such cases, agrees, and that’s what democracy is about. Barristers like you can talk about the poor misunderstood child killers, and the rest of us can know that we’re right and you’re wrong.

11 Kelvyn Gardner October 5, 2014 at 14:57

‘Don’t want your family life disrupted by your criminal partner’s deportation? Don’t have children with criminals’. It doesn’t seem very difficult.’

Perhaps you secretly wish more work for lawyers, eh, in a new type of pre-nup? ‘Tell me dear, are you planning to commit a criminal offense punishable by a gaol term of three months or more? No? Lovely, let’s get hitched!’.

Mr. Nambu, it’s never that simple, even when you have Tory-UKIP politics involved.

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