Bringing Rights Home – Boateng and Straw

Hi guys!

Back again, this time with a post on human rights; which you can find here: Bringing Rights Home – Boateng and Straw. This article, written by P. Boateng and J. Straw, has a seriously long name: ‘Bringing Rights Home: Labour’s Plan to incorporate the European Convention on Human Rights into UK Law’. As you can guess this is pre-HRA 1998.

It is time to repatriate British rights to British courts.

Straight out from the introduction, we are presented with the main reasons behind Labour’s desire to incorporate the ECHR into UK law. The authors describe Britain as being “subject” to the ECHR, and explain that although the Convention was “signed, ratified and supported by successive UK Governments”, it was vainly so, because it was never incorporated. Thus, UK citizens could not have those rights protected in their own country, and were forced to appeal to the Strasbourg courts.

As a result, British people were forced to undergo the lengthy and costly process of appealing to a Strasbourg court which is neither sufficiently familiar with, nor sensitive to, British legal and constitutional traditions.

The article then claims that it will show how incorporation will “cut costs, save time, and give power back to British courts”, adding that it was supported by many senior members of the judiciary, including the Lord Chancellor at the time. More interestingly, it provides us with statistics of public support for the measures protecting right before Labour was elected.

Two surveys undertaken by MORI in January and May 1995 showed 73% and 79% of people respectively either “strongly agreeing” or “tending to agree” with the proposition that a Bill of Rights is needed to protect the liberty of the individual”. And further, despite the obstacles, more people have been appealing to the ECtHR.

We are given a quick reminder that the European Union and the Council of Europe are “wholly separate”, and that all of its 40 members, except Britain and the Republic of Ireland had incorporated the Convention.

The Convention is described as enshrining “traditional civil and political rights and freedoms” which they go on to claim are recognised to be the birthright of the British people; and yet the latter were unable to plead a breach of rights under it in all but the most limited circumstances. This had three main consequences. First, it meant that the courts could not start building human rights case law in a British context. Second, there was no ‘dialogue’, or ‘exchange’ between the European Court of Human Rights and the UK (which meant that the Strasbourg courts would continue to not appreciate the UK legal system or its traditions). Third, any appeal to the ECtHR was cost-heavy (it could entail legal costs in the region of £70 000) and time consuming (an average minimum 6 years to get a judgement, up to 9 years); as the courts were flooded with cases as it was, and would only receive a greater amount of cases were more countries to subscribe to the Convention. And so:

The most speedy, practical, and effective remedy would be to pass legislation that would incorporate the standards of the ECHR into UK law.

Once the introduction finished, they get into the crux of the argument, and begin by defining the ECHR as “a statement of civil and political rights”, which however “does not embrace issues of social and economic rights which have surfaced in advanced industrial societies” (in other words, it includes the right to vote, of free speech, from torture, but not the right to uncontaminated water, to work by preventing employers from discriminating in recruitment, or the right to social security like denying social assistance to people due to their status). They note that Governments on the Council can suspend the application of those rights in the case of war or national public emergency. Roughly 90% of the applications are declared inadmissible with no right of appeal.

Where a signatory state is found to be in breach of the Convention their domestic law and practices must be amended to remove the cause of the breach.

In essence, the situation in which the UK was in, meant that even if there was a clear breach of the Convention, British courts were forced to apply domestic legislation; leaving the aggrieved to attempt to persuade the ECtHR to provide a remedy, when they so easily could do it themselves if the power was awarded.

In 1995 alone, there was a 50% increase in the number of cases held to be admissible against the UK. Roughly 75% of the 40 breaches found against the UK (excluding those where the Government has adjusted its position to reach a settlement) had been since 1979.

What marks out the UK’s record is the serious nature of the cases brought and the absence of speedy and effective domestic remedies.

So the argument is that if the cases were dealt with domestically, it would be at much earlier stages in the legal process, and so reduce the recourse to Strasbourg courts. Ultimately, incorporation would be giving the people a higher chance of being heard, reduce cases being sent to the ECtHR and so allow them to take on more important cases, amend the UK’s damaged international standing on human rights, strengthen the position of individual UK citizens, while allowing them to retain a final recourse to the Strasbourg court.

To incorporate, the UK needs an Act of Parliament. This requires 5 key issues to be decided:

  1. The relationship of the Convention to existing UK law
  2. Derogations and reservations (i.e. in which cases rights can be suspended)
  3. Applicability
  4. Eligibility to challenge
  5. Remedies.

First – If the ECHR was introduced into UK law, there would inevitably be much conflicting legislation. One approach could be to comb through all statute to ensure its compatibility with the Convention, but that would be a “massive, time-consuming task”. The best way would be for the courts to try to interpret the legislation consistently with the ECHR as far as it can, and to allow the case law to develop on its own to show incongruences.

Second – Article 15 of the ECHR allows Governments to derogate from their obligations “in time of war or other public emergency threatening the life of the nation”. In a nutshell, the authors conclude that the same should apply.

Whilst it is important to guard against undermining the Convention through unnecessary or inappropriate derogations, future Governments cannot be prevented from acting in the national interest at times of genuine crisis.

Their durations would be defined and subject to periodical parliamentary renewal.

Third – The authors believe that the ECHR’s applicability should not be broadened to include private individuals and corporations as well as public authorities; as the central purpose of the Convention is to protect the individual against the misuse of power by the State. They however write that “Individuals would in certain circumstances be able to use the new Act to seek secure and effective action by public authorities to protect them against abuse of human rights by private bodies or individuals.”

Fourth – The requirement for ‘locus standi’ (i.e. standing) is traditionally widely interpreted by British courts, needing only to demonstrate a “sufficient interest in the matter to which the application relates”. The same should be applied to the new act.

Fifth – The question of remedies is a difficult one – on the one hand it would be wrong to impose a liability on the government to pay a certain amount for every breach no matter how slight, on the other hand it would be unfair to deny remedy to those who have suffered a major breach of the ECHR in exceptional cases. Therefore the authors conclude it would be best to develop remedies for breaches on a case-to-case basis. They remind the reader that individuals already have access to judicial review as a means of obtaining redress for the misuse of public power – the act would only broaden the scope.

Next the article addresses Northern Ireland, claiming a “widespread support for provisions in the Convention across both communities living there”. There is a mention of a need to develop “specific rights protections to deal with the uniques problems of the divided community”, although what they should was the subject of considerable debate.

As for the relationship between the act and the “fundamental … constitutional tradition” of parliamentary sovereignty, the ECHR would not be ‘entrenched’ in our UK “constitutional arrangements” as they say, and so a future Parliament could elect to withdraw from the Convention and end incorporation if they so chose. Despite this, the authors believe that the incorporation would most likely enjoy “a high degree of permanence in UK law”.

Unilateral withdrawal by the UK is improbable and amendment of the Convention is subject to negotiation by all signatory governments.

… a somewhat ironic comment.

The article goes on to explain that there are two safeguards in place for special circumstances or against “unreasonable fettering of national sovereignty”. The first is the ‘margin of appreciation’ allowed by the ECHR, and the second is Parliament’s right to pass exceptional legislation in times of national crisis. Any derogation though would need to be clear as to what emergency it related to and when it would apply.

Next: how would the act be enforced? People would have access to it by applying for judicial review or as a defence against a public body. They suggest that one way forward for the Act to meet all its goals would be to “establish a Human Rights Commission or Commissioner to take on some or all of the roles” (like conducting inquiries into particular issues or legal areas, or monitoring the operation of the Act). In any case, they underline the importance of there being adequate arrangements for scrutinising legislation to ensure “conformity not only with the ECHR, but with other human rights obligations which UK governments have entered into by signing UN and other international treaties and conventions”.

We consider it essential to distinguish the responsibility of the Executive to ensure that new legislation brought forwards does not breach human rights obligations, from Parliament’s responsibility to scrutinise draft legislation for conformity with those obligations.

Again, somewhat ironic considering.

There is then some talk of reforming aspects of the government “machinery” to prevent any law contrary to human rights being prepared. As an added safeguard, ministers and individual departments could be required to certify that to the best of their knowledge, the proposed legislation commits no breach; and in case of such a breach, it would have to be reported to the Lord Chancellor and the Speaker of the House of Commons to explain why. None of the committees in place, although numerous, have a human rights focus, so Parliament should play a lead role in protecting human rights. Further, “a Joint Committee on Human Rights of both Houses of Parliament should be established”, with the same powers as a select committee to compel witnesses to attend. Another interesting suggestion the authors make is that 3 lay members with the 5 law lords which would be normally present in the final appellate level. The aim would be to have people with “knowledge and understanding of society and human rights in the broadest sense”, to avoid principles being established in the “narrow legal perspective”. They would full members of court with an equal vote to the judges.

In conclusion:

The incorporation of the ECHR into UK law is an important part of Labour’s programme for restoring trust in the way we are governed. We aim to change the relationship between the state and the citizen, and to redress the dilution of individual rights by an over-centralising government that has taken place over the past two decades.

By increasing the stake which citizens have in society through a stronger constitutional framework of civil and political rights, we also encourage them to better fulfil their responsibilities. This is an essential part of our strategy to re-establish a balanced relationship between rights and responsibilities. The new Act will improve awareness of human rights issues throughout our society. It is an important and worthwhile change in its own right. As experience of the new legislation develops it will nurture a culture of understanding of rights and responsibilities at all levels in our society and assist public discussion of what might be the character of any future UK Bill of Rights and Responsibilities.

… no comment. If only these guys were still around to wack Theresa may and her Conservative party in the head a few times.

Anyways, this article is long to read. Honestly, the key points have been listed here in quite some detail, so I don’t think you need to read the full article, unless you have some free time. Although this article discusses a pre-HRA view, I find it important because it can be useful to see what the purposes and mindsets were behind the HRA in its conception.

Thanks for reading!

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