Human Rights Watch is deeply concerned about the UK government’s plans to scrap the Human Rights Act and limit the role of the European Court of Human Rights in the UK, or failing that even to withdraw from the European Convention on Human Rights.
These actions would weaken human rights protections domestically, seriously undermine the UK’s standing on human rights internationally, and lessen its credibility when raising human rights concerns with others. They would also endanger a highly effective mechanism of human rights protection for millions of people across Europe.
After the horrific abuses in Europe during the Second World War, the UK and other governments established the European Convention on Human Rights and the accompanying European Court of Human Rights to help safeguard essential rights for people across the continent. Over the last six decades, it has proved its worth across the 47 countries that make up the Council of Europe. The case law of the European Court has contributed greatly to ending torture in custody, moving towards equal treatment for women and for lesbian and gay people, ending corporal punishment in schools, tackling domestic violence, and in upholding the freedom of the press
For several years now, Conservative politicians have suggested that the Human Rights Act, which incorporates the Convention into domestic law, is some kind of alien import, which has led UK courts to apply standards developed in Strasbourg to block the ability of the UK government to act in the best interests of the public. They have accused judges at the European Court of Human Rights of engaging in “mission creep” - expanding the meaning of rights in the Convention beyond what was originally intended, as in the case of votes for prisoners in the UK, and in a way that gives excessive protection to people who don’t deserve it, such as terrorism suspects whom the UK wishes to deport.
But these arguments are confused and misleading. In a country based on the rule of the law, the courts in applying human rights will inevitably sometimes constrain the ability of the government to act. The European Court does apply the rights in the Convention to evolving situations, such as in the growing acceptance of the right of LGBT people to marry, but it is deferential to governments to decide how best to implement their obligations under the Convention. In suggesting that rights protections should be withheld or restricted for some individuals or groups, critics in the UK also misunderstand or deny the most defining dimension of human rights: that they apply to all.
The Human Rights Act was passed into law in 1998 with overwhelming cross-party support and the backing of the then Conservative Party leadership. It incorporates into UK law the rights set out in the European Convention on Human Rights. British lawyers were deeply involved in drafting the Convention and the UK has been a signatory to it since 1951. It is hardly surprising therefore that the liberties set out in the ECHR 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 alleged alien nature of the ECHR is therefore particularly misplaced.
Easier access to these rights through the UK courts – a major objective of the Human Rights Act - has brought real benefits to people in the UK. The HRA has been used, for example, to stop elderly couples from being separated and placed 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 practices in psychiatric hospitals.
Despite Conservative claims of European judicial overreach and intrusion, in many respects the HRA is a conservative measure. It obliges the domestic courts to “take into account” judgements of the European court, but they are not bound by them. Under the Human Rights Act, domestic courts should interpret domestic laws in accordance with the European Convention but if they conclude there is a conflict, courts cannot strike the law down but only note that “incompatibility” to Parliament. It is for Parliament to decide whether and how to change the law.
Of course, there are cases in which the courts – both the UK courts and the European Court of Human Rights – rule that the UK government of the day has breached rights guaranteed by the Human Rights Act or the European Convention on Human Rights. But the number of cases in which this happens is very small. In 2014, some 1,243 cases were brought before the European Court of Human Rights against the UK government, but only four were lost in that year. Moreover, a larger number of cases are thrown out each year without even reaching the Court, because they are judged to be inadmissible.
Criticism of the HRA or European Convention in respect of the treatment of terrorism suspects and foreign criminals is misplaced. It is not the case that the HRA prevents the UK from deporting all foreign criminals or foreign terrorism suspects. The vast majority of those ordered to be deported are removed once their sentences have been served. Human rights law can only block deportation in a very limited number of cases: if the deportee faces a real risk of the death penalty or of being subject to torture or ill-treatment in the country of destination. These principles are enshrined in other human rights treaties to which the UK is party, including the International Covenant on Civil and Political Rights and UN Convention against Torture, and the UK’s withdrawal from the ECHR would not alter its legal obligations under these treaties.
Deportation can also be blocked on other human rights grounds – if there would be a significant negative impact on a proposed deportee’s partner or dependants. But this right is not absolute: the courts weigh the potential harm to the individual, to the individual’s family (who may be UK citizens), and the impact on society if they are permitted to remain, taking into account the seriousness of the crime they have been convicted for. The numbers allowed to remain on this basis is relatively small, around 300 per year in recent years, and not a reason to unpick the UK’s system of human rights protection.
Beyond the impact in the UK, the government’s plans would also gravely damage a vital institution that has secured rights for many people across Europe. The government’s bid to make the rulings of the European Court purely advisory in the UK will be seized on with glee by abusive leaders in Europe and further afield, but will be a huge blow to people suffering serious human rights abuses in countries like Russia, Turkey, Hungary or Ukraine, for whom the European Court is a critical instrument of human rights protection.
For the UK to withdraw outright from the ECHR – as the government’s proposals threaten to do – would also significantly diminish its standing on human rights internationally. Only one country has ever withdrawn from the Convention – Greece in 1970, when under military rule. And only one country in Europe sits outside the Convention – Belarus, a brutal and authoritarian state.
Of course, the government claims it is committed to human rights and that it will replace the Human Rights Act with a British Bill of Rights. If this bill merely replicates the protections in the Human Rights Act it is unnecessary. But if it seeks to weaken human rights protections for some groups of people, or some kinds of rights, if it weakens or severs the link with the European Court, or leads to the UK leaving the European Convention on Human Rights, it will do very serious harm, not least to the UK’s global reputation and influence abroad. The government should think again.