The first thing to point out when discussing the possible repeal of the Human Rights Act and its replacement with a completely new British Bill of Rights is that nobody can truly be certain of anything, except that it appears that large scale change is on the way, and the impact upon court cases and tribunals of all kinds is likely to be huge. The Bill itself hasn’t been unveiled yet, and the hints given by various government spokespeople tend to be fairly broad in nature. Indeed, so too are the particular proposals which have emerged from both the 40 page draft bill produced before the last election by Martin Howe QC, and the Conservative Party Working Paper ‘Protecting Human Rights in the UK’. There is still a degree of uncertainty as to whether any Bill will get past Conservative backbenchers in the House of Commons. Balanced against those members who view this as a chance to break free from the undue influence of the European Court of Human Rights in Strasbourg, are a significant number who view any move away from the Human Rights Act and towards a British Bill of Rights as presenting a risk to basic human rights in the UK.
Add to this the fact that any bill is bound to receive a forensic and not necessarily sympathetic examination in the House of Lords, and will also have to be crafted in a manner that can cope with the pressures placed on it by the various devolved parts of the UK creating a process which is far from straightforward. At present, the 1998 Human Rights Act forms a central plank of the devolution agreements pertaining to Wales, Scotland and the Good Friday Agreement in Northern Ireland. Disentangling it to the point at which it can be removed altogether and replaced with something entirely new, will require more than a little legal and political dexterity, particularly if it isn’t to amplify demands for another independence referendum in Scotland.
The case for and against the creation of a new Bill of Rights, can be summarised fairly simply. When the Human Rights Act came into force in 2000, it enshrined the principles of the European Convention on Human Rights (ECHR) into UK law. These principles were drawn up in the aftermath of World War Two, and included rights such as the right to life, liberty, a fair trial, freedom of expression and a respect for private life, as well as the prohibition of discrimination, slavery and torture. The feeling amongst those who wish to repeal the Human Rights Act 1998, and replace it, is that the European Court of Human Rights has, undergone a degree of ‘mission creep’. They argue that it has been interfering in judgements made in the British courts in a manner far removed from the intentions of those who originally drew up the ECHR. Examples often utilised by the proponents of change include the ruling, handed down from Strasbourg, stating that a blanket UK ban on prisoners voting was unlawful. This is coupled with the lengthy legal struggle needed to deport radical Islamist cleric Abu Qatada, a struggle which hinged on the European Court of Justice’s ruling that some of the evidence used to convict him may have been obtained via torture.
The basic aim of the legislation is to remove the link between British courts and the European Court of Human Rights, contained within section 2 of the Human Rights Act, requiring domestic tribunals and courts to ‘take into account’ judgements made in Strasbourg. It is stated that any Bill of Rights will still be based upon the principles of the European Convention of Human rights, but will instruct UK Courts to give a narrower definition to some of these rights than has been offered by the court in Strasbourg, and will only allow Human Rights to become part of a defence in ‘the most serious cases.’ The examples of ‘serious cases’ given so far include those which involve property, criminal law and liberty, but not, for example, cases hinging upon torture, freedom of speech or due process.
Some opponents of the changes argue that, while the Strasbourg Court may well, upon occasion, stray into areas in which it was never intended to have influence, the answer lies in working with the court towards an interpretation of the Human Rights Act which better fits British culture, rather than merely pulling out altogether. It should be noted, initially, that the number of cases which have been referred from the British courts to the court in Strasbourg, in the years between 1975 and 2014, still only stands at a relatively small 418. This has led many opponents of the proposed changes to view the government’s stance as representing an overzealous approach which reflects more the symbolic role of the Strasbourg Court in the eyes of many euro sceptics, than it does any genuine reflection of the legal situation.
Those opposing also point out that the duty to ‘take into account’ the judgements of the court in Strasbourg has always been open to interpretation rather than being an out and out directive. They argue that any step away, however slight, from the principles of the European Convention of Human Rights, will greatly damage the standing of the UK internationally, and particularly with reference to attempting to stop human rights abuses in other countries. By turning their back on the Strasbourg Court and diluting the principles of the ECHR, a British government would run the risk of losing any influence they currently have over how decisions might be made in the future.
A more fundamental problem expressed is that Basic Human Rights are precisely that: basic inviolable rights. Any attempt to finesse them is the start of a slippery and dangerous slope. The creation of these rights, it must not be forgotten, was a reaction to the horrors of the Second World War and some of these horrors may find a grim echo, however faint or unintended it might be, in the framing of a British Bill of Rights which draws a distinction between the rights of different individuals.
One of the most troubling aspects of the plans as they exist at the moment is the fact that they are, in some parts, based upon interpretations of the existing Convention on Human Rights which are somewhat loose, to say the least. For example, the Working Paper, which we must assume will form a blueprint for any Bill of Rights which finally emerges, states that the original Convention places a restriction upon the rights of people when weighed against their responsibilities. For example, an individual’s right to a private and family life has to be weighed against any danger they might represent to other individuals or the wider public. In the original Convention, however, this is a general principle and is meant to be applied only in the broadest sense, i.e. that the individuals rights have to be balanced by the rights of others. By drawing a link between ‘rights’ and ‘responsibilities’, the Conservative plans seem to suggest a situation in which actions in the past (a breach of responsibilities) could limit rights in the present. The assertion that this would simply be a reflection of the ECHR as it stands relies upon a misreading, at best, of the balance between rights and responsibilities within the ECHR. This begs the question why, if the change is indeed to be so slight, it has to be made at all, particularly bearing in mind the reputational damage it might wreak. Any attempt to put words such as ‘but’, or ‘except’ at the end of statements heralding basic human rights, other than in the case of clear and present danger to others, is a dilution of rights which, presently, occupy a pan-national position above the legal system of any single country.
The direct effects of a British Bill of Rights upon criminal cases in the UK depend upon two different variables. The first, and more easily guessed, is the actual detail of what is included within the bill once it is published. The second, and much more difficult to gauge, is the content of any bill finally passed, after its lengthy consultation period. Changes which are certainly intended to take their place in the Bill include:
- Those convicted of “serious offences” (not limited to offences relating to terrorism) will lose their right to stay in the UK under Human Rights Laws
- The right to a family life will be much more limited in scope than is currently the case
- As soon as a basic right is allowed to be open to third party interpretation – deciding what represents a “serious case” – then it ceases to be a basic right
- Defendants will not be able to use Human Rights legislation as a defence against breaking other laws
The lengthy consultation process which is just about to start will provide an opportunity for anyone interested in the law in the UK, and particularly in the rights of defendants, to engage and attempt to play a part, however small, in framing the forthcoming Bill of Rights
By Bambos Tsiattalou, founding partner of Stokoe Partnership Solicitors
Bambos Tsiattalou is a Senior Partner and founding member of Stokoe Partnership Solicitors, a criminal litigation practice specialising in defending very serious crime. He specialises in a range of serious criminal matters and have been repeatedly featured in Chambers & Partners as a leader in the field of criminal defence with a strong reputation for client care and attention to detail.
About Stokoe Partnership Solicitors
Stokoe Partnership is a criminal litigation practice that specialises in defending very serious crime. They work in all types of crime, with particular expertise in serious fraud, proceeds of crime, money laundering, drug trafficking, extradition, and bribery and corruption cases.