1. Would the UK be better off if the Human Rights Act was replaced by a new Bill of Rights?
There is a case for strengthening human rights protection in the UK with additional safeguards or a wider set of rights entitlements than those already set out in the Human Rights Act (1998). That act obliges UK government agencies and the courts to respect human rights and allows those in the UK to assert their human rights in the domestic courts. Human rights would especially be strengthened if these protections became part of a written constitution that gave stronger powers to the Supreme Court to enforce human rights --providing rights protection equivalent to that found in other democratic countries.
But most of those who advocate scrapping the Human Rights Act and replacing it with a new Bill of Rights appear to be interested in diminishing, not increasing, human rights protections.
Much of the criticism of the Human Rights Act is ill-informed. The act incorporates into UK law the European Convention on Human Rights (ECHR). This document – drafted in the 1950s with the support of Winston Churchill and very extensive UK involvement – is itself heavily influenced by UK legal traditions, including the right to habeas corpus. The convention reflects global standards on human rights such as the UN Declaration of Human Rights that the UK helped shape and the international treaties that the UK has freely signed, along with most other countries across the world.
The act gives effect to the rights in the ECHR, making it easier for those living in the UK to secure their basic liberties through UK courts rather than having to seek redress at the European Court of Human Rights, a process that can take years. The liberties in question are ones long valued in the UK, such as the prohibition of torture and inhuman treatment, free speech and peaceful protest, equal rights under the law, the presumption of innocence and the right to a fair trial.
The act has already brought some clear benefits to people living in the UK. For example, it has been used to prevent separation of elderly couples to place them in different residential care homes, to secure accommodation for the survivors of domestic violence, to tackle discrimination experienced by homeless people and to prevent degrading practice in psychiatric hospitals, as well as in many other cases.
The Human Rights Act only permits courts that find domestic law to be in conflict with human rights to note that incompatibility to Parliament. It is for Parliament to decide whether and how to change the law. Many other democratic countries give courts greater powers to strike down laws without additional consultation if they find they violate rights guaranteed by the country’s constitution.
2. Should the UK be able to deport foreigners convicted of serious crimes in this country?
The UK has legal powers to deport foreigners convicted of a serious criminal offense, with a judge ordering deportation of a foreign national during the sentencing process. These deportations occur after the person has served their sentence in the UK. Human rights law only becomes relevant -- with the courts intervening to prevent deportation -- in three circumstances. Firstly, the UK courts can and should block deportation if the prospective deportee would face a real risk of death, torture or ill-treatment in the country of destination. This protection is so important that it should always override other considerations.
Second, the courts will and should intervene to prevent deportation on human rights grounds if the person has no prospect of a fair trial in the receiving country. The same principle applies in cases in which a person’s extradition is sought to another country to stand trial there. The assessment of whether a fair trial is possible should be based on the individual case but also the receiving country’s record in respect of criminal justice. Ensuring the right to a fair trial is a cornerstone of a society based on the rule of law, as well as a long-established principle of the UK legal system.
Third, human rights law can be invoked by the courts in respect of the right to a family life -- concerning the impact of deportation on the deportee’s partner or dependents or their long-established links with this country. In a very limited number of cases, the courts may decide to block deportation on this basis. But it is not an absolute ban. The courts apply the principles of fairness and proportionality in reaching their decisions, weighing the potential harm to the individual, the individual's family -- who may be British citizens, and the impact on society if the person is permitted to remain, taking into account the seriousness of any crime for which the person has been convicted. This is appropriate in a country governed by the rule of law and with a separation between government and the judiciary.
Some proponents of replacing the Human Rights Act with a new Bill of Rights argue that it would allow the UK to override these principles in order to remove foreign nationals convicted of serious offences, or to strike a different balance than the one called for in the European Convention on Human Rights. This argument ignores the fact that the prohibition on returning someone to a place where they are at risk of death or torture and the requirement to assess the risk of unfair trial or interference with family life also exist in international human rights treaties like the UN Convention Against Torture and the UN International Covenant on Civil and Political Rights. The UK is legally bound by these treaties. Beyond the UK’s borders, complying with these obligations is essential if the UK is to be credible when calling on other governments, in Europe and elsewhere, to respect human rights.
3. Should the European Court of Human Rights be able to overrule the UK Parliament and the UK courts?
The UK is a founding member of the Council of Europe and one of the earliest signatories of the European Convention on Human Rights (ECHR). Indeed, the UK government in the early post-war years was instrumental in the creation of the council and the drafting of the convention. Like other members of the Council of Europe, the UK government is obliged to uphold the rights set out in the convention. These rights also reflect international standards, set out for example in the UN Declaration on Human Rights and International Covenant on Civil and Political Rights.
The rationale for a European-wide convention and accompanying European Court of Human Rights is precisely to set minimum standards on human rights that apply to all across Europe, and standards that can be given practical effect. After the horrific human rights abuses in Europe in World War II, such an institution was seen as a way to help safeguard essential liberties for all European citizens. And over the last 50 years, it has proved its worth, protecting and promoting rights for people across 47 countries in Europe.
The case law of the court has contributed greatly to ending commonplace torture in custody, in moving toward equal treatment for women and for lesbian and gay people, protecting the rights of people with disabilities, ending corporal punishment in schools, reducing domestic violence and upholding the freedom of the media to publish articles in the public interest against the wishes of the authorities.
To suggest that the European Court of Human Rights should never be able to rule against rulings in national courts or laws passed by national parliaments amounts, in effect, to a call for its abolition. It would be a court without meaning, whose rulings could safely be ignored by all European governments. This would be a very extreme and retrograde step, welcomed by Europe's remaining autocrats and authoritarians, but removing vital human rights safeguards for millions of Europeans.
In fact, he court finds the overwhelming majority of cases brought against the UK inadmissible and only rules that the UK has breached the convention in a small minority of cases. In 2013, the Court ruled that the UK had breached the convention in only 8 cases, while 1,633 cases against the UK were found inadmissible or struck out, out of the 1,652 cases against the UK the Court decided that year. To withdraw from the ECHR – as some propose – would deprive people in the UK of a system of human rights protection that is envied around the world. The only country to have ever withdrawn voluntarily from the ECHR was Greece in 1969, when it was under military dictatorship. Today, the one European country that is not a party to the ECHR is Belarus, a highly authoritarian and undemocratic state where virtually all forms of dissent are suppressed.
4. Does the European Court of Human Rights need reform?
The court carries out work on a scale unlike any other international court in the world. It is now the court of last resort on human rights for all of the Council of Europe countries, including Russia, with a total population of over 820 million. In 2013 it received 65,900 applications.
The court itself has led the calls for reform and a reform process is well under way, designed to strengthen the court’s work by improving implementation of judgments by national authorities -- which can help reduce the large number of applications addressing similar issues -- and addressing its huge backlog. As of July 1, 85,000 cases were pending before the court. This is still far too many, but it is a significant reduction since 2012, when the backlog was over 160,000 cases
A protocol, adopted in 2013 will insert an explicit reference to the long-established principle of subsidiarity, which means that member states’ public bodies and judges have the primary responsibility to implement the ECHR and the court’s case-law. The court itself over the decades has developed the principle of “margin of appreciation,” meaning it is obliged to take into account the cultural, historic and philosophical traditions of each country and defer to them where appropriate. The new protocol, which will enter into force when all states parties have ratified it, will also reduce the time limit for bringing a case from six months to four months. Stricter conditions for bringing cases before the court, which entered into force on January 1, have also contributed to decreasing the backlog. The court has also developed priority criteria for assessing applications to ensure that the most serious and urgent cases are considered first.
But it is clear that some of governments in the Council of Europe see the reform process as an opportunity to limit the court’s jurisdiction or weaken its authority. An April 2011 declaration at a Council of Europe summit, for example, suggested that the court should refrain from hearing immigration cases other than in exceptional circumstances.
Some of the proposals put forward by the UK government during its 2011-2012 presidency of the Council of Europe fell into this category and would have weakened the court’s work in upholding human rights, limiting its ability to hear cases even when important human rights issues were at stake and giving governments greater latitude to decide for themselves how human rights should be applied. That would be especially worrying when considering the impact on Council of Europe countries like Turkey, Azerbaijan and Russia, where the national courts have a poor record of protecting human rights. Thankfully neither proposal secured enough support from other governments to be adopted. But the political and media pressure on the court over the past few years in the UK may have long-lasting and negative effects, inspiring wider pressure and attacks on it by other governments.
In assessing reforms to the European Court of Human Rights, it is vital to keep in mind that for many victims of human rights abuse in Europe, the European Court offers the only real chance for justice. Limiting access to the court for those who need it would undermine the very purpose of the court itself.