Having its (Strasbourg) Cake, and Eating It

The UK government has proposed replacing its domestic rights charter, the 1988 Human Rights Act, with a new ‘Bill of Rights’. This may further destabilise its already turbulent relationship with the European Convention on Human Rights (ECHR) system of rights protection, and risks having wider negative effects. It is particularly noteworthy that the UK government’s proposals include a sustained and explicit attack on the integrity of key elements of the Strasbourg jurisprudence, even though the government also claims to respect the European Court of Human Rights and the ECHR more generally.

The Strained Relationship Between the UK and the ECHR

UK human rights law has long been controversial. There have been two particular points of tension. The first is the UK’s relationship with the European Court of Human Rights, which British critics regularly accuse of indulging in over-expansionist rights protection. The second has been the way that ECHR rights have been incorporated into UK law by the 1998 Human Rights Act (‘the HRA’), which is the UK’s domestic charter of enforceable legal rights. Critics of the HRA claim it gives British judges more power than is constitutionally appropriate, given the limited role that the judiciary has historically played within the UK’s ‘political constitution’. They also accuse the HRA of linking UK law too closely to the ECHR jurisprudence. (British courts generally adhere closely to the Strasbourg Court’s jurisprudence in interpreting and applying Convention rights.)

These criticisms have been regularly aired by some prominent judges and academics. They have also become received wisdom within the politically dominant Conservative Party. Successive Prime Ministers have supported radical reform of the UK’s relationship with Strasbourg, as well as of the HRA. David Cameron said the ECHR judgment on prisoner voting rights, Hirst v UK (No 2), made him ‘physically ill’. Theresa May argued in the run-up to the 2016 Brexit referendum that the UK should leave the ECHR, not the EU. And senior ministers in Boris Johnson’s government have attacked ‘judicial legislation’, and questioned the role of both the Strasbourg Court and UK judges under the HRA.

However, despite all this rhetoric, no UK government has as yet shown any serious appetite for denouncing the ECHR. Such a step would undercut British ambitions to be a leader in promoting respect for human rights across the world. It would also seriously complicate post-Brexit relations with the EU, and breach the Belfast Agreement – which recognises the ECHR to be a key ‘safeguard’ of the Northern Ireland peace process. Furthermore, the ECHR and HRA also have many passionate supporters, within politics, civil society, academia and the legal system. Any move to leave the Convention system, or to repeal the HRA and de-incorporate ECHR rights, would trigger considerable political resistance within the UK. It would also generate serious legal uncertainty, given how much of existing UK law has been shaped by Convention jurisprudence.

All this limits the room for manoeuvre available to critics of the ECHR/HRA. While many Conservative politicians in particular would like to change the status quo, they have the difficulty of squaring a circle: how to reduce the influence of Strasbourg on UK law, and reduce the judicial role in protecting rights, while still remaining a state party to the Convention? Also, if the HRA is to be radically reformed, what system of domestic rights protection should replace it?

The Independent Human Rights Act Review

With this policy dilemma in mind, the UK government set up an expert review panel in December 2020 to consider the current state of UK human rights law. After carrying out a wide-ranging public consultation, the review panel reported in December 2021. Its report was impressive: carefully argued, balanced and detailed. It concluded – probably to the disappointment of some government ministers – that both the UK’s relationship with the ECHR and the functioning HRA were generally working well. It recommended some adjustments to the HRA, mainly to ensure that courts gave due weight to UK common law in deciding rights matters. But, in general, it painted a positive picture of the status quo.

The UK Government’s Proposals – A Modern Bill of Rights?

However, on the same day this report was published, the UK government published a consultation paper, entitled Human Rights Reform: A Modern Bill of Rights, finally setting out its own views on ECHR/HRA reform. This consultation paper pays some lip service to the Review’s report – but, in reality, disregards its conclusions. Instead, it presents a very different picture of the current state of UK human rights law, based almost exclusively on the views of critics of the ECHR/HRA.

Chapter One of the consultation paper begins by giving a rosy, uncritical overview of the UK’s human rights record through history, glossing over darker and more complicated elements like the Empire and the Northern Ireland conflict. Chapter Two then affirms the UK’s commitment to international human rights law, and to the ECHR in particular – while noting that the subsidiarity principle is generally recognised to be an important element of the ECHR scheme of rights protection, as confirmed by the recent entry into force of Protocol 15 to the Convention.

After that, the gloves come off. Chapter Three proceeds to paint a highly negative picture of the current functioning of the ECHR/HRA. It argues that UK human rights law as currently configured is ‘flawed’, on the basis that it (i) encourages too much emphasis on rights and not on responsibilities; (ii) generates legal uncertainty; (iii) puts ‘public protection […] at risk by the exponential expansion of rights’; and (iv) gives courts too great a role in determining ‘public policy priorities and decisions affecting public expenditure’ (p. 28).

The consultation paper goes on to place much of the blame for this on the Strasbourg Court, and in particular on the Court’s ‘living instrument’ doctrine – which is described as a ‘concerted attempt to pioneer, expand, and innovate human rights law beyond the rights set out in the Convention’ (para 99).  The Strasbourg Court’s interpretation of the scope of certain Convention rights, in particular Article 8 ECHR, and its positive obligations jurisprudence is subject to particular criticism.

Similarly, the HRA is accused of promoting ‘over-reliance on the Strasbourg case law, at the expense of promoting a home-grown jurisprudence tailored to the UK tradition of liberty and rights’ (para 114). The HRA’s requirement that UK judges interpret legislation ‘as far as possible’ in conformity with Convention rights is also criticised for giving rise to a ‘significant constitutional shift in the balance between Parliament, the executive and the judiciary’ (para 117) – causing a ‘democratic deficit’ (para 170).

Having set out this apocalyptic picture of judicial power run amok, Chapter Four of the consultation paper sets out the UK government’s concrete reform proposals. It begins with a big announcement: the government is planning to replace the HRA with a new ‘Bill of Rights’. This sounds radical. But the reality is more prosaic. It turns out that the government is actually planning to keep Convention rights as part of UK law, in line with the existing provisions of the HRA, but wants to ensure they are interpreted in a more restrictive, deferential manner – and with less weight attached to Strasbourg jurisprudence.

Thus, the consultation paper seeks views on how to ensure that UK courts refer to a ‘wider range of law’ in interpreting Convention rights: this can include law from other common law jurisdictions, as well as existing domestic law (para 196). The government also indicates that it wants to (i) ensure that UK courts show greater deference to the legislature (para 291); (ii) restrict the development of positive obligations case-law (para 231); (iii) reduce the extent to which courts can give a ‘rights friendly’ interpretation to legislation (para 236), in particular in the context of migration control (paras 292-298); (iv) and limit the circumstances in which individuals can seek remedies for breach of Convention rights, especially when they are deemed to be ‘undeserving claimants who may themselves have infringed the rights of others’ (para 308).

Finally, the consultation paper proposes that the sovereign authority of the Westminster Parliament in human rights matters should be reasserted, and that Parliament should be given a more active role in debating Strasbourg judgments which find the UK to be in breach of the Convention. The consultation paper claims this would ‘provide a clear and explicit democratic shield to defend the dualist system in the UK by making clear that Parliament…has the last word on how to respond to adverse [ECHR] rulings’ (para 315).

Analysis

What to make of these proposals? The strained relationship between the UK and the ECHR system makes it easy to attack the HRA as an ‘alien’ rights framework. The focus on Convention rights has arguably also stunted the development of ‘home-grown’ rights jurisprudence. There are thus respectable arguments to be made in favour of rethinking elements of existing UK human rights law. However, these specific ‘reform’ proposals lack coherence.

To start with, the use of the term ‘Bill of Rights’ is a form of false advertising. The UK government did not initiate any sort of popular debate on what rights should be protected in UK law. The consultation paper dismisses the idea of legally enforceable socio-economic rights in a single sentence (para 150), and there is no discussion of incorporating other international human rights standards into UK law. There are some vague aspirations expressed about giving greater protection to jury trial and freedom of expression. However, the consultation paper’s proposals on these points are legally feeble, and lacking in substance. In essence, the government’s proposals are all about ‘managing’ the impact Convention rights have on UK law: its proposed ‘Bill of Rights’ is nothing more than a ‘Human Rights Act minus’.

Also, the consultation paper’s description of the current state of UK human rights law is absurdly one-sided. It essentially ignores the conclusions of the expert review panel, not to mention similar views expressed by the Joint Committee on Human Rights of the UK Parliament. There is little or no acknowledgement of the positive changes to many aspects of UK law that are attributable to the HRA and ECHR membership.

The consultation paper also does not even pretend to give a balanced account of ECHR jurisprudence, as illustrated by its offhand claim that the Strasbourg Court is effectively creating ‘new rights’ (para 107). Nor does it acknowledge that many aspects of the Strasbourg jurisprudence that it criticises – in particular the ‘living instrument’ approach, and the development of the concept of positive obligations – are integral to the development of international human rights law over the last fifty years, and are not specific to the ECHR. Instead, the consultation paper contains a sustained and explicit attack on the integrity of Strasbourg jurisprudence, and by extension the rest of international human rights law – by a government that simultaneously claims to respect the Strasbourg Court, and international rights norms more generally.

Having said that, the UK government’s bark is in some ways worse than its bite. These supposedly radical reforms will leave the core structure of the HRA intact. However, many of the specific changes planned by the government will limit the ability of UK courts to apply Convention rights in line with Strasbourg jurisprudence, and thus open up gaps between UK law and the requirements of the ECHR. If these ‘reforms’ become law, this will encourage more claimants to seek remedies in Strasbourg which they will be unable to get back in the UK. The Strasbourg Court has shown a tendency to be deferential towards the UK over the last decade – but more cases going to the Court will inevitably heighten existing tensions with the UK government. Furthermore, the proposed changes will also generate uncertainty within UK law, as established precedents and norms based on the current state of ECHR/HRA case-law may have to be substantially revised.

Conclusion

The UK government’s proposals for reform of British human rights law are flawed, in several different ways. They masquerade as a ‘Bill of Rights’, set out a distorted account of the Strasbourg jurisprudence, and risk further destabilising the UK/ECHR relationship, while potentially eroding both individual rights protection and legal certainty. It is also worth noting that they go against the proposals of the expert review panel. Given the current turbulent UK political situation, it remains to be seen whether these measures will ever become law. For now, they are testimony to the UK government’s attempt to have its cake and eat it, i.e. to stay within the ECHR system of rights protection while simultaneously calling into question the legitimacy of much of the Strasbourg jurisprudence. It remains to be seen how much damage this will cause to the ECHR, and by extension to international human rights law more generally. What happens when other governments pick up on the UK government’s rhetoric? Only time will tell.