Following the UK's General Election, there has been increased attention to the prospect of changes to the Human Rights Act. However, changes have been mooted by the Conservative Party for some time. Researchers in Durham Law School have followed developments for many years and there are considerable depth and breadth of expertise on the Act and its operation.
The proposals raise issues of how satisfactorily the Human Rights Act currently operates, whether it initiates an appropriate relationship with the European Court of Human Rights in Strasbourg, and the failings of the current regime.
There are also questions raised about what might replace the Human Rights Act. A 'Bill of Rights' or a 'British Bill of Rights' have been discussed, but a draft of the document is yet to be released. There is also debate about the motivations that are driving the reforms.
Relationship with Europe
Why are some politicians concerned with the European Court's influence?
The proposals in the Conservative manifesto, as set out by Helen Fenwickhere, emphasise a perceived need for greater 'distance' between the European Court of Human Rights and the UK's courts. Elsewhere she writes, the idea of senior Conservatives "appears to be to seek to utilise the BoR to aid in increasing the autonomy of the UK Parliament in human rights’ matters".
It has also been argued by some in favour of reform that there has been 'mission creep' in the activities of the European Court of Human Rights. However, Alan Greene (with his co-author Kanstantsin Dzehtsiarou) has argued that this misrepresents the intention of the system, which was not seen as an 'endgame' but was set up to be capable of evolution.
Are UK Courts bound by the European Court of Human Rights?
The UK House of Lords and Supreme Court have generally favoured an inflexible approach to the interpretation of the section of the Human Rights Act (s2(1)) that requires UK courts to 'take into account' the case-law of the European Court. This inflexibility - known as the mirror principle - through permitting the content of domestic human rights laws to be effectively determined by an external source of law the European Court, has given rise to the suggestion that the European Court of Human Rights wields excessive influence over the UK laws.
However, Masterman also highlights that this rigid approach is not prompted by the Human Rights Act itself, but is a product of judicial interpretation. He supports a flexible approach and argues that amendment or repeal of the HRA is not required for courts to develop rights that are receptive to domestic as well as international influence.
Roger Masterman has written a briefing document on this topic, which you can read here.
Has the European Court sought compromise with the UK?
In 2012 Helen Fenwick suggested that the European Court of Human Rights might be appeasing the UK through its judgments in several cases. Helen argues that appeasement can be problematic, and she raises questions about the extent to which enhanced subsidiarity would ease the pressure on the European Court. Later, in 2015, she notes that the Court's less interventionist stance in several cases might point to a less confrontational Court, seeking compromise with the views of senior politicians.
Alan Greene notes that the European Court has an interest in keeping the UK on board. He argues that the court has worries about its legitimacy, and a UK exit would increase Russian hostility towards the Convention. Co-operation, he writes with his co-author Kanstantsin Dzehtsiarou, between the Court, national states, and legal and academic communities is essential to the legitimacy of the system. In addition, the concerns raised in the reform discussions about the Convention applying to soldiers abroad, neatly play to Russia's interest in avoiding accountability for actions in Ukraine.
Helen writes that after Brighton, senior Conservatives may be on the fence about whether to meet the European Court halfway, but also notes that it may be difficult for them to row back on their anti-Human Rights Act rhetoric.
Who has duties under the Human Rights Act?
This is a highly complex question. The basic answer is that the Act requires courts and tribunals, ‘core’ public authorities (for example, central and local government and the police), and ‘hybrid’ public authorities – private bodies who perform a mixture of public and private functions – to respect the ECHR. The meaning of a public function is a disputed issue, but Alexander Williamsargues that it also unmasks a number of underlying matters that are complex in their own right. One such matter is whether hybrid public authorities can rely on the ECHR themselves.
Does the Human Rights Act contain 'alien' ideas?
There is a danger that the Act is seen as 'foreign' or 'alien'. Masterman (highlighting the comments of Lord Justice Laws), notes that a 'slavish attitude' to the European Court's case-law can limit 'a sense of domestic ownership over the Convention rights'.
Phillipsonargues that the Human Rights Act has both influenced the UK's constitution and that the approach to the Human Rights Act has been influenced by the UK's constitutional principles. This relationship, he notes, is a highly complex one.
On occasion, the Act is criticised for affording too many rights to terrorists. However, a specialist in counter-terrorism laws, Fiona de Londras (with her co-authors Bates, Bell, O’Cinneide, Dzehtsiarou, Edward, Greene, Johnson, Lock), notes that this tends to misrepresent the flexibilities built into the European Convention system. In fact, the European Court has not always enforced 'optimal' rights for such individuals in such scenarios.
Where else can human rights protections come from?
In a recent article Roger Masterman and Se-shauna Wheatlehighlight the role of the common law in providing human rights protections. They trace the UK courts' use of the common law prior to the existence of the Human Rights Act. Some weaknesses in the common law approach meant that the Human Rights Act was 'speedily embraced as a panacea'. In the face of increased criticism of the Act, judges have begun to reassert the importance of the common law. The UK Supreme Court has adjudged that the common law should be the 'starting point' of enquiry.
Alan Greene specifically addresses the role that classic administrative law or judicial review plays in protecting rights. He notes that this is still the predominant route for such individual protections, but that this route is also increasingly under threat. Misconceptions about the role of judicial review and hostile attitudes mean that the next five years are likely to bring further changes to the system.
Why have human rights not been accepted in the UK?
Benedict Douglasargues that the major modern and historic human rights documents recognise human rights as inalienably and universally attaching to individuals by virtue of their humanity. However, this justification for rights possession in dignity or any other foundational human characteristic is absent from the Human Rights Act. This lack of recognition of a deeper fundamental basis for Convention rights, he argues, underlies both the euro-sceptic and party political hostility to rights in the UK and the lack of ownership of rights amongst the public.
What about Northern Ireland?
The Human Right Act is the mechanism for enshrining the European Convention rights that are required by the peace deal, the Good Friday Agreement. This Good Friday Agreement is central to the settlement in Northern Ireland and is a bilateral international treaty between the British and Irish governments (as has been highlighted in this briefing paper from Aoife O'Donoghue and Ben Warwick). Caution and many consultations on the reforms are needed before the Human Rights Act is modified as regards Northern Ireland.
Briefings and Blogs
What is the Human Rights Act?
Human Rights Law experts from Durham Law School answer topical questions on the Human Rights Act and the prospect of changes to the legislation. Concerns about the relationship with the European Court of Human Rights as well as the human rights issues around deportation, immigration, and war are all addressed in this ‘The UK’s Human Rights Act: FAQs’.
Are UK Courts Bound by the European Court of Human Rights?
The current Bill of Rights debate is partly premised on the suggestion that the ‘mirror principle’ permits the ECtHR too great an influence over UK laws. Yet, as this briefing ‘ Are UK Courts bound by the European Court of Human Rights?’ and this blog ‘The Mirror Crack’d’ post from Roger Masterman discuss, this mirroring is not prompted by the HRA itself, but is a product of judicial interpretation. There is also growing evidence that domestic courts are willing to depart from Strasbourg case law.
Handing back autonomy to the UK in human rights matters?
This blog ‘The Conservative anti-ECHR stance and a British Bill of Rights: rhetoric and reality’ post from Helen Fenwick addresses the current ways that the Human Rights Act operates and why some might see it as constraining the UK's autonomy. It looks at the role the Bill of Rights Commission played as a coalition government compromise, and how some Conservatives have reacted. It concludes that even a new Bill of Rights is unlikely to meet the Prime Minister's anti-ECHR and anti-HRA rhetoric.
Is the European Court of Human Rights appeasing the UK?
In 2011 the coalition government established a Bill of Rights Commission to investigate the creation of a UK Bill of Rights and to advise on reform of the European Court of Human Rights in Strasbourg. The Commission issued its Final Report in December 2012. A key theme in the Report is the notion that one cannot discuss rights without also discussing responsibilities.
Northern Ireland has a particularly important relationship with the Human Rights Act and the European Convention on Human Rights. The Good Friday Agreement (a key part of the Northern Irish peace process) enshrined a fundamental role for the Convention in moderating the values of plurality and equality in the ‘new’ Northern Ireland. This briefing argues that disturbing the Human Rights Act and unpicking the terms of the Good Friday Agreement is an unwise move.