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Should the UK repeal the Human Rights Act 1998?
12/08/2015
Public Law analysis: How would the government's plan to repeal of the Human Rights Act 1998 (HRA 1998) affect
the UK? Martin Westgate QC at Doughty Street Chambers suggests that UK courts will continue to look to the
European Convention on Human Rights (ECHR) for inspiration regardless of whether the government repeals
HRA 1998.
Original news
Queen's Speech 2015: Non-Bill measures, LNB News 27/05/2015 106
Along with the legislative measures announced in the Queen's Speech, the government has also announced a number of
other measures that may be included in future legislation. This includes proposals a repeal of HRA 1998 and the
introduction of a UK Bill of Rights.
What is the background to the repeal of HRA 1998 and the introduction of a British Bill of
Rights?
In October 2014, the Conservative Party published proposals to 'make fundamental changes to the way human rights
laws work in the United Kingdom'. HRA 1998 would be repealed and would be replaced by a Bill of Rights and
Responsibilities. That Bill would:
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enact the 'original' text of the ECHR into primary legislation
clarify ECHR rights to reflect a 'proper balance' between rights and responsibilities
remove the obligation (HRA 1998, s 2) to take into account judgments of the European Court of Human
Rights (ECtHR)
introduce a new parliamentary procedure under which judgments of the ECHR were to be advisory only
require UK courts to interpret legislation based on its 'normal meaning and the clear intention of Parliament'
restrict the use of human rights laws to the most 'serious cases' so that there is a 'threshold below which
ECHR rights will not be engaged'
A commitment to make these changes was contained in the Conservative Party manifesto but the Queen's Speech on 27
May 2015 said only that the government would 'bring forward proposals for a British Bill of Rights'. Although there have
been press reports to the effect that there is already a draft Bill in existence, proposals are not expected to be published
before the autumn.
What steps would need to be taken in order for HRA 1998 to be repealed?
Strictly speaking, HRA 1998 could be repealed in the same way as any other statute. It is not, and could not be,
entrenched and no special procedures would be required to secure its repeal. The main legal difficulties that arise are to
do with whether the proposed replacement Bill of Rights would be compatible with the UK's Treaty obligations as a
signatory to the ECHR and the knock-on effects of this.
What would repealing HRA 1998 mean for the UK's link with ECHR and ECtHR? Could HRA
1998 be repealed without the UK leaving the ECHR?
HRA 1998 could be repealed without substantially affecting the UK's links with the ECHR and the ECtHR. The position in
England would revert to what it was before 2 October 2000 when the HRA 1998 came into force. The UK would be under
a duty to comply with the ECHR by securing the rights in the ECHR to everyone within its jurisdiction (ECHR, art 1). There
would be a duty to give a right to an effective remedy before a national authority for any violation (ECHR, art 13) and
individuals claiming to be victims of a violation would have the right of individual petition to the ECtHR provided they had
exhausted their domestic remedies (ECHR, art 34, 35). Significantly, ECHR, art 46 would remain in place under which the
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UK undertakes 'to abide by the final judgment of the court in any case to which' it is a party. This duty is binding on the
government and is supervised by the Committee of Ministers.
Unless and until any replacement Bill of Rights was put in place, these duties would bind the UK as a signatory to the
Treaty, but the ECHR rights would not be directly enforceable as a matter of English law or against English public
authorities. As a practical matter this might well mean that the UK is more often found to be in breach of ECHR, art 13
(effective remedy) because the domestic courts will no longer have the ability directly to provide a remedy for a human
rights breach.
However, this description of the likely effect is subject to the qualification that the position is different in relation to the
devolved governments of Scotland, Wales and Northern Ireland (see below).
The problems arise because of some features of the proposed replacement Bill of Rights. It is suggested that the
substantive rights are going to be re-enacted but other proposed provisions are in conflict with the UK's duties under the
ECHR. It is most unlikely that the UK will be able to negotiate a change to the ECHR to accommodate these so the effect
will be to create a situation where the UK is repeatedly in breach at best and the changes may be incompatible with
continuing to be a party to the Treaty. In evidence to the Justice Committee on 15 July 2015, Michael Gove refused to rule
out withdrawal from the ECHR.
The main controversial suggestion is that ECtHR judgments should be 'advisory only'. This is incompatible with ECHR, art
46. Other provisions, such as removal of the interpretative duty now in HRA 1998, s 3 and the express enactment of
limitations on certain rights are not incompatible in themselves because domestic law may still comply with the ECHR.
However, they increase the likelihood of a violation because the domestic courts will be less able to correct incompatible
provisions.
Are other international treaties the UK has entered into dependent upon HRA 1998 and, if so,
what would happen if HRA 1998 was repealed?
None of the other international agreements that the UK has entered into depend upon HRA 1998 but some do require or
imply continued adherence to the ECHR.
Most significantly, the Treaty on European Union recites that the EU is 'founded on the values of respect for human
dignity, freedom, democracy, equality, the rule of law and respect for human rights' (ECHR, art 2). ECHR, art 6 provides
for the EU to accede to the ECHR and ECHR, art 7 provides a procedure where the European Parliament 'may determine
that there is a clear risk of a serious breach by a member state of the values referred to in ECHR, art 2'. This can involve
sanctions including suspension of voting rights. If the UK withdrew from the ECHR or if it adopted measures that put it
repeatedly and systematically in breach then it might be vulnerable to action under ECHR, art 7.
Other treaties expressly refer to the ECHR in the preamble--for example the Council of Europe Convention on Action
against Trafficking in Human Beings. Even if the UK were to withdraw from the ECHR, its principles would still be
applicable when interpreting duties derived from the ECHR.
There is also a significant issue arising from devolution settlements although only the Northern Ireland arrangements
involve international agreements with another independent state.
The Good Friday Agreement provided for safeguards to ensure that ECHR rights were respected and that legislation
would not infringe the ECHR. This is reflected in the Northern Ireland Act 1998, s 6, which provides that incompatible
legislation is outside the competence of the Assembly. Corresponding limitations are found in the Scottish and Welsh
devolution provisions.
The UK Parliament is still sovereign over these matters and in principle it could legislate to repeal these measures.
However, there is a Convention (the Sewell Convention) under which the UK Parliament will not legislate over devolved
matters without the consent of the devolved legislature. This does not prevent the creation of a Bill of Rights making
different provision for England only but that then creates the possibility of a 'two speed' UK, where Wales, Scotland and
Northern Ireland must comply with the ECHR--at least in respect of devolved matters, but there are different rules in
England and elsewhere for non-devolved matters.
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If HRA 1998 is repealed, could the British Bill of Rights face difficulties in becoming law?
It is difficult to anticipate the response of the House of Lords without knowing more detail about what is intended to be
included in the Bill. Under the Salisbury Convention, the House of Lords will not oppose a Bill that enacts a manifesto
commitment but the commitment here was in such vague terms that when the Bill eventually emerges it may well be
possible to say that it does not correspond with the manifesto pledge. In particular, the manifesto did not suggest that the
new proposals would be in conflict with or would raise the possibility for departure from the ECHR. Indeed, shortly after
the election, the Prime Minister maintained that 'the Bill will remain faithful to the basic principles of human rights, which
we signed up to in the original European Convention on Human Rights'. If the Bill goes further than that then the House of
Lords may feel itself unconstrained by the ECHR.
In any case the ECHR is only a convention and a change of this kind may test its limits.
What sort of challenges could repealing HRA 1998 bring? What would it mean for all the case
law and legislation which involves HRA 1998?
This really depends to a large extent on what HRA 1998 is replaced with. If there was no replacement, but the UK
remained a signatory to the ECHR, then this would raise difficult questions about how far the ECHR ought to inform the
development of the common law, despite the repeal of HRA 1998. It also raises questions about whether the ECHR was
enforceable in any event through the route suggested by Lord Kerr in the recent case of R (on the application of SG) v
Secretary of State for Work and Pensions [2014] EWCA Civ 156, [2014] All ER (D) 203 (Feb). Lord Kerr suggested the
traditional doctrine, under which an unincorporated treaty is not enforceable in domestic law, may not apply to human
rights instruments where it would be abusive for the state to take advantage of its own breach. This is a controversial view
that was not shared by the rest of the Supreme Court, but it shows that the courts may be prepared to adopt creative
solutions to make up what is perceived as a gap in fundamental protections.
We are also likely to see a greater emphasis on the role of the common law in protecting fundamental rights, as Lord
Reed explained in Osborn v The Parole Board [2013] UKSC 61, [2014] 1 All ER 369:
'The protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human
Rights, but permeates our legal system'.
This cannot be overplayed because the common law does not recognise the same range of fundamental rights as the
ECHR, but where there is an overlap (for example, in relation to privacy, free speech and rights to liberty and security), it
will be an extremely difficult task to disentangle a purely common law from that influenced by the ECHR. Therefore, the
courts are likely to continue to look to the ECHR for inspiration in developing these areas.
What we are likely to end up with though is a re-enactment of the ECHR core rights, but with some provisos about how to
interpret the qualified rights. The courts will still be free to take account of Strasbourg case law in interpreting these rights
and there is unlikely to be any great change in their practice here. The domestic cases that have been decided on human
rights grounds over the past 15 years will have an uncertain status because they will have been based on interpretative
duties in HRA 1998, ss 2, 3 that no longer apply.
What would the implications be for ongoing cases and likely compliance with outstanding
judgments?
The position here ought to be unaffected but will depend on any transitional provisions. If the UK were to withdraw from
the ECHR then the provisions of the ECHR would still apply to acts performed before the date when the denunciation
became effective--ECHR, art 58 (Denunciation).
Are there any further points of interest or observations you wish to add?
The proposals that are currently under consideration run the risk of doing a great deal of damage for very little gain. They
are premised on the idea that the ECtHR regularly rules UK laws to be unlawful in decisions that have departed from the
original spirit of the ECHR and that UK courts are bound rigidly to apply ECtHR rulings. Neither proposition is correct.
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As to the first, it is worth remembering that the UK has an extremely good record before the ECtHR and has rarely been
found to be in breach. The ECtHR annual report for 2014 refers to just 14 judgments to which the UK was a party of which
only four resulted in a finding of a violation. When the ECtHR rules against the government, it does not change the law
and it remains for Parliament to decide how to respond. The idea of the UK being ruled in some sense from Strasbourg is
a fantasy.
As to the second, the recent cases from the domestic courts show that they are adopting a much more nuanced approach
to the application of ECtHR cases and they are quite prepared to apply them flexibly to take account of the domestic legal
scene. So, they may not follow decisions which are 'inconsistent with some fundamental substantive or procedural aspect
of our law' or 'whose reasoning appear[s] to overlook or misunderstand some argument or point of principle' (see
Manchester City Council v Pinnock [2010] UKSC 45, [2011] 1 All ER 285, para [48]).
If what is sought is some greater empowerment for domestic courts and for Parliament then the proposed changes will
bring little benefit over what already happens. The removal of the duty to take into account ECtHR decisions will probably
make little difference and the removal of the 'strong' HRA 1998, s 3 interpretative duty will be wasteful because it will stop
the domestic courts putting matters right before they have to go to Strasbourg. The 'clarification' of qualified rights is
equally pointless. Many such qualifications are present in the ECHR rights anyway and if the glosses go too far then they
will simply result in further challenges. The suggestion that judgments be advisory only invites a clash with the Council of
Europe but over a tiny number of cases.
In return for miniscule gains, if indeed they are gains, the government is willing to provoke a dispute that may threaten its
relationship with the Council of Europe and even the EU. At the very least, it threatens to tarnish this country's justified
reputation as a champion of fundamental rights. It cannot hope to promote rights across the globe if, like Belarus, it rejects
full membership of a regime for the protection of rights that is accepted by all of its European peers.
Martin Westgate has a consistent track record of advice and representation in a wide range of subject areas although he
concentrates on public and administrative law, housing and social care. Human rights arguments feature across the whole
spectrum of Martin's work. His recent cases have dealt with issues as diverse as the right to life, right to home and family
life, private life, freedom from arbitrary detention, rights to protest and free speech, rights to property and possession.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor
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