By: Jian Yang Hoh
“This is the country that wrote the Magna Carta . . . the country that time and again has stood up for human rights . . . whether liberating Europe from fascism or leading the charge today against sexual violence in war.”
UK Prime Minister David Cameron’s recent speech at the Conservative (Tory) Party Conference 2014 was filled with allusions to the great British tradition of upholding human rights. Strangely enough, this high rhetoric was marshalled to justify repealing the Human Rights Act 1998 (HRA), a piece of domestic legislation that, among other things, makes it unlawful for any public body to act incompatibly with the European Convention on Human Rights (ECHR), an international human rights treaty that has been signed and ratified by the United Kingdom. Should the Conservatives retake power in the upcoming election, Cameron envisions a new British Bill of Rights that will return sovereignty to the United Kingdom, allowing British judges to make judgments for British people. Yet the recent strategy paper released by Justice Minister Chris Grayling suggests that the text of this new Bill of Rights will be identical to that of the ECHR. Any clear explanation for this behaviour must be by reference to the wider debate on the United Kingdom’s sovereignty concerns, and the political context that surrounds it. This post will first explain the way the European Court of Human Rights (ECtHR) works with regard to the United Kingdom, and detail the reasons for their strained relationship. It will then describe how Conservative plans for human rights reform are significantly motivated by politics, and argue that those plans would have deleterious domestic and international consequences.
Background: Politics, Sovereignty, and Euroangst
The United Kingdom has been subject to the jurisdiction of the European Court of Human Rights (ECtHR) since 1951. Membership is compulsory for all members of the Council of Europe, an advisory international organization promoting co-operation on law, culture, and development in the region. The ECtHR, based in Strasbourg, hears complaints from any individual who feels that his or her rights as enumerated in the ECHR have been violated by a Member State, and all judgments are binding on the States concerned. In 1998, the UK Parliament signed into legislation the HRA, which allows human rights cases to be decided in British courts in accordance with the ECHR, and requires judges to take into account ECtHR jurisprudence as persuasive authority. Ultimately, however, an individual who has had his case tried in the UK courts may still appeal to the Strasbourg Court for a final, binding decision.
Recent judgments of the Strasbourg Court have clashed with the Conservative government’s policies on crime and national security. In Hirst v. United Kingdom (No 2), the ECtHR ruled that the United Kingdom’s blanket ban on prisoner voting was incompatible with the ECHR, arguing that the government had failed to provide specific and convincing reasons to depart from the principle of universal suffrage. Similarly, the ECtHR’s refusal to allow the UK government to deport alleged Al-Qaeda affiliate Abu Qatada in Othman (Abu Qatada) v. United Kingdom on grounds that he would face torture back in Jordan was not met with felicity by the Conservatives. Qatada was eventually deported (and acquitted in Jordanian courts) after the United Kingdom signed a treaty with Jordan obtaining explicit assurances that he would not face torture, but not before prominent Conservative politicians and newspapers emphasized the high cost to the British taxpayer of keeping the alleged terrorist in the country, inflaming public outrage.
This conflict is exacerbated by the Strasbourg Court’s history of making high-profile reversals of decisions by British judges. In Smith & Grady v. United Kingdom, the ECtHR overturned judgments by British courts that held that the executive branch of government had not acted illegally in investigating and discharging members of the Navy on grounds of their homosexuality, sparking a sea change in policy on sexual orientation in the armed forces. More recently, in Al-Skeini v. United Kingdom, the ECtHR disagreed with the adjudication of the UK Supreme Court on the extraterritorial application of ECHR rights, and held that British soldiers have human rights obligations even while fighting in Iraq. This decision was highly unpopular in the United Kingdom, and has been held up by Cameron as an example of unacceptable interference by the ECtHR.
Much of this hue and cry is highly political. The Conservatives’ need to distance themselves from anything European has been made all the more urgent by the meteoric rise of the United Kingdom Independence Party (UKIP), a right-wing populist party whose charismatic leader, Nigel Farage, has run on a platform of strong Euroscepticism with great success. Although UKIP did not succeed in carrying any of its party members into Parliament in the last election, recent polls have them at around a stable 15-18%, gaining on the Tories’ low 30s, and nearly twice the percentage of the Liberal Democrats, who currently share power in a coalition government with the Conservatives. Cameron is not just faced with the prospect of losing right-wing vote share to Farage—a string of recent Tory defections to UKIP indicates that he is in danger of losing party members as well. If the Conservatives appear weak on crime, national security, or sovereignty, support will likely flow to the more hard-line UKIP.
Ill-advised Proposals and Consequences
The problem with promoting the repeal of the HRA as a headline act of an incoming Conservative government is that the Tories will have to go much farther to achieve any meaningful reform. Removing the HRA will fail to solve the problem of the ECtHR’s ultimate jurisdiction over the United Kingdom, only prevent Convention rights from being directly enforceable in domestic UK law, and result in more costly and protracted referrals (on average costing £30,000 [≈47600 USD] and taking an average of 5 years) to the Strasbourg Court. To effect real change, the United Kingdom will have to sever from the ECtHR completely. This would be a drastic step. It would remove the United Kingdom from the Council of Europe, which would place it in lonely company with Belarus and Kazakhstan as the third European state not party to the organization. This would worsen the United Kingdom’s already fractious relationship with the European Union (EU), not least because a treaty approving the accession of the EU itself to the ECHR is currently under discussion. Cameron has maintained that staying in the EU under some renegotiation would be best for the United Kingdom. Rejecting the jurisdiction of the ECtHR will further underscore the United Kingdom’s alienation from the rest of the EU, and add to the growing list of factors that may ultimately lead to a British exit.
Much criticism of the Strasbourg Court centres on the fact that its unelected judges may decide matters of contentious policy, and is therefore undemocratic. Yet deference to the particular socio-political context of each Member State is at the core of the ECtHR’s jurisprudence—the margin of appreciation, a concept applied uniformly across all cases relevant to the ECHR, makes substantial provision for each member state to interpret the text of the Convention differently. In A, B, and C v Ireland, the European Court declined to rule on the legality of Ireland’s anti-abortion laws, holding that there was insufficient consensus on the matter within Europe to be justiciable. Further, democracy does not always work well with fundamental rights, as exemplified by reference to the parliamentary record of the House of Commons debate on prisoner voting: less than one page was devoted to substantive discussion of the issue at hand, and over thirty were focused on frustration with regard to Strasbourg competence creep. When the persons whose rights are under threat are unpopular, and when legislative bodies are infected with politicking, it falls to principled forums like the ECtHR to act as the ultimate watchdog.
Britain has a long and storied history of leadership in the area of fundamental rights. It is precisely that reputation that would make severance from the ECtHR such a disastrous move; if the United Kingdom will not comply with the ECHR, how could Russia or Turkey be compelled to do so? Europe is at a pivotal moment in its history of collective human rights enforcement—if the Conservatives take power again, one wrong step could mark the beginning of the United Kingdom as a leader in all of the wrong ways.
Jian Yang Hoh is a L.L.M. Candidate at Berkeley Law. He is a student contributor for Travaux.