A British Bill of Rights will allow the Conservative government to deport an individual to a country where they face a real risk of torture, harm or humiliation.
On the future of human rights in the UK under the new the Conservative majority government, Adam Wagner (One Crown Row Ltd and founder of RightsInfo.org) gave a very timely seminar last week for the Oxford Human Rights Hub and the Oxford Martin School Human Rights for Future Generations Programme. The seminar asked two crucial questions: what will they do? And what can human rights activists do?
What will they do?
The Conservative Manifesto argues that the Human Rights Act, 1998 (HRA) should be scrapped and replaced with a British Bill of Rights based on “common sense”, but one that is still consistent with the European Convention on Human Rights (ECHR). However, besides addressing some of the recent controversies in the UK human rights landscape such as deporting suspected terrorists and prisoner voting, the Conservative Manifesto does not provide much detail on what specifically a British Bill of Rights will contain and how it will differ from the HRA.
The Conservative Policy Document from October 2014 provides slightly more detail. This is not a legally coherent document, and may not entail a radical change for human rights in the UK, but nevertheless highlights some of the potential conflicts between the Conservative proposals and the European Court of Human Rights (ECtHR).
First, the Conservatives propose that the judgments of the ECtHR be deemed advisory and only become binding when Parliament should enact it legally. They further propose that there be established a cross border Committee that will consider the judgment before going to Parliament. This demonstrates a misunderstanding of the current dualist position between domestic and international law. Moreover, there have long been calls to establish a Parliamentary committee to review ECtHR judgments, so this proposal is not as radical as it may appear to be at first.
Second, the policy document calls for a formal break between the UK courts and the ECtHR. By this they mean to remove section 2 of the HRA which requires the UK courts to take account of ECtHR jurisprudence. Wagner points out that this does not prohibit the court from having the discretion to take account of this jurisprudence. He argues courts are likely still to take account of developments in the ECtHR because a) it makes good legal sense to understand how a similarly situated human rights body answers a similar human rights question and b) if the UK courts completely disregard the ECtHR the individual still has the right to appeal the ECtHR, and there will be an inevitable conflict between the two courts potentially creating legal confusion and uncertainty.
Third, the Conservative government will repeal the HRA, but keep the provisions of the ECHR. However, the British Bill of Rights will contain stronger interpretative provisions to limit the scope of some of the rights in the ECHR. The Conservatives were supposed to release a draft of the proposed new Bill of Rights before the election, but this never materialised.
Fourth, the new Bill of Rights will weed out ‘trivial’ cases and import a ‘serious’ case threshold. Wagner points out the rules of civil procedure already give judges the tools to dismiss these types of cases. Moreover, the potential ‘serious case threshold’ still provides a lot of scope for judges to interpret this standard to ensure individuals are still able to access the courts.
Fifth, the Bill of Rights will incorporate and clarify the ECHR. This is where the Conservative government could be setting up a conflict with the ECtHR. The Policy Document wants to amend Article 3 of the HRA and remove the “real risk test.” This relates to deportation. Removing this test would allow the Conservative government to deport an individual to a country where they face a real risk of torture, harm or humiliation which is in direct conflict with an established line of reasoning from the ECtHR.
Sixth, the Conservatives will restrict the territorial scope of human rights to the borders of the UK. This is meant to ensure that British service men and women serving abroad are not bound by human rights obligations. This in itself can be problematic but also means that British citizens cannot avail themselves of the protections of the HRA outside of the UK.
In terms of what will happen, Wagner argues that there are four possibilities:
(i) a Bill of Rights MAX that incorporates all of the proposals as listed above;
(ii) a Bill of Rights MEDIUM where the most controversial aspects of the bill are negotiated away in Parliamentary procedure;
(iii) a Bill of Rights MINIMUM that makes some minor changes to the HRA, such as removing the Article 2 requirement to take account of the ECtHR case law; this would in effect be a rebranding of the HRA with some relatively minor tweaks;
(iv) the HRA remains.
Wagner argues convincingly that just sticking with the HRA has its downside in that it may engender further distrust and apprehension about human rights.
What can we do?
Wagner argues that while the outlook for human rights in the UK may appear dim, there is still important work to be done by human rights activists. It is important to reach out and try to find a middle ground. Second and perhaps most important is changing public perception on human rights by making the positive case for a continued commitment to a robust human rights system.
This can be done by pointing out what human rights have accomplished in the UK: the protection of privacy; ensuring that children are not assaulted and recognition of the importance of expressing individual religious beliefs.
It is necessary to work towards creating a culture that sees the values of human rights and places them at the centre, so that it becomes politically unfeasible to scale back the human rights protections that already exist. In the Q&A period, Wagner suggested that a citizens’ convention might have a role in fostering an inclusive public discussion of human rights, citing the example of the recent constitutional convention in Ireland.
Meghan Campbell is Weston Junior Research Fellow, New College, Oxford University and Deputy Director of the Oxford Human Rights Hub.
Article courtesy of Open Democracy