On Friday 3rd October the Conservatives published a paper ironically but presumably unintentionally, entitled ‘Protecting Human Rights in the UK’ . The aim of the proposal set out in the paper is to restore “common sense” and to “put Britain first” in relation to the legal protection of human rights.
As we shall see, the somewhat ill thought out proposal, seemingly largely driven by fear of increasing popularity of the UKIP party, seeks to restore the UK Parliament to full vigour, protecting our UK laws and UK constitution from interference by the Strasbourg Court and dastardly European human rights law.
In the paper the Conservative Party sets out its plans for the next Parliament for human rights law in UK. They propose:-
- to repeal the Human Rights Act 1998,
- incorporate the European Convention on Human Rights into primary legislation, and
- to pass a new British Bill of Rights to set out a “proper balance between rights and responsibilities”.
According to the paper, the aim of the new Bill will be to ensure that the European Court of Human Rights in Strasbourg (ECtHR) no longer “binds” UK courts and to reduce the role of the Court only to “an advisory body”.
The justification for the proposal is the claim that over the years the ECtHR “has developed a ‘mission creep’” involving itself in developing and extending the scope of the Convention “beyond what the framers of Convention had in mind”. This is a form of originalist interpretation is often seen in circumstances where embeded political elites wish to avoid legal scrutiny and limit the scope of the rule of law.
The paper asserts, that in construing the Convention as a ‘living instrument’ the Court goes beyond the intention of the Convention and regularly overturns decisions of UK courts and overrules laws passed by UK Parliament. The Conservative Party proposal argues that, human rights law in UK has now become “a matter of abstract principle” instead of remaining “grounded in real circumstance” and presumably some from of ‘common sense’ of what being British may mean.
Were we to ask what exactly is meant by ‘real circumstance’ and ‘abstract principle’ we may think that the former refers to a misplaced narrow notion of ‘common sense’, as an appeal to populist disenchantment with current social and economic conditions, and the latter refers to ideas such as the rule of law and notions of genuine democratic accountability for instance.
However, on any even a very short examination, it seems that the entire proposal is in fact ‘legally illiterate’  and riddled with howlers, according to Dominic Grieve, the former Coalition Attorney General who criticised the proposal in a BBC interview on 3 October.
We will now briefly look at some of the legal howlers in the Conservative Party proposal.
The paper gives a number of cases claimed as examples of the flaws of the European Court of Human Rights. To take one example of an obvious ‘howler’, the paper refers to the case of Vinter & Others v UK from 2013 regarding the legality of non-reviewable life sentences.
The paper asserts that:
“…the Strasbourg Court ruled that murderers cannot be sentenced to prison for life, as to do so was contrary to Article 3 of the Convention. This Article is designed to prohibit “torture” and “inhuman or degrading treatment or punishment.” For the Strasbourg Court, this entails banning whole life sentences even for the gravest crimes.”
This claim is simply untrue and legally illiterate. As Professor of Law, Alison Young explains:
This “… howler is the classic error of elevating the need for regulation into a ban…In Vinter and Others v United Kingdom the European Court of Human Rights did conclude that life sentences could  breach Article 3 of the European Convention. The important word here is ‘could’. The Court does state that ‘Article 3 must be interpreted as requiring reducibility’ of a life sentence. [paragraph 119]. But it is important to realise that by ‘reducibility’ the Court did not mean that life sentences were banned. Rather, the ‘reducibility’ of the sentence required is ‘a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence as to mean that continued detention can no longer be justified on legitimate penological grounds.’ [paragraph 119]. The Court is also careful to point out that ‘it is not its task to prescribe the form (executive or judicial) which that review should take’. [paragraph 120], save to mention consensus found in comparative and international law of support for a review ‘no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter.’ [paragraph 120]. As the Government itself acknowledges , Vinter v UK does not mean that life sentences are banned or that those serving life terms must be released. Rather, what is banned is a life sentence without a review after 25 years of that sentence. If there are sound penological grounds for continued detention, the prisoner remains in detention.”
Alison Young was not the only commentator to note that the paper was riddled with basic misunderstanding of Strasbourg jurisprudence, erroneous readings of cases and sloppy reasoning, which would not be made by any reasonably competent undergraduate law student.
It is of some considerable concern that significant constitutional reform proposals appear to be based on serious misunderstanding of the development of human rights law in UK and its dialogic interaction with UK Parliament and the ECtHR.
Parliamentary sovereignty and democratic accountability.
The errors do not to only arise in the discussion of exemplary cases but are repeated when the paper discusses the Human Rights Act itself. The proposal asserts that the 1998 Act undermines Parliamentary sovereignty and democratic accountability.
This argument is based on the use of Section 3(1) of the 1998 Act. The provision requires the UK courts to interpret legislation such that it is compatible with the Convention right “so far as it is possible to do so”. The criticism is that the “UK courts have gone to artificial lengths to change the meaning of legislation so that it complies with their interpretation of Convention rights,…, even if this is inconsistent with Parliament’s intention when enacting the relevant legislation.”
As Alison Young, succinctly points out, the argument contains two obvious howlers:
1) The paper relies on selective choice of cases used to support the argument that assertion that the courts change the meaning of UK legislation such that it complies with the Strasbourg interpretation of the Convention rights. The paper overlooks the 2004 decision in Ghaidan v Gobin-Mendoza  which confirmed that the courts will not stretch the meaning of words in order to make legislation compatible with the Convention if to do so would “undermine a fundamental feature of that legislation”.
2) Next, the paper asserts that the 1998 Act in effect means that once the UK courts have construed legislation so as to comply with the ECHR the will of Parliament is overborne. In fact there is nothing in the Human Rights Act which precludes Parliament from passing legislation reversing an incompatibility judgment under Section 3(1).
Rights and responsibilities.
Finally, the paper seeks to promote a rather dishonest reformulation of the concept of a human right generally understood as a fundamental characteristic of our ‘humanness’ which informs and determines the laws that govern us, and the political and juridical structures which mediate our social relations.
The proposal seeks to transform the idea of a human right as an overarching determined concept, to a ‘right’ held (owned) on our behalf by politicians and granted us, in a sort of contractual transaction, in return for our social compliance and political obedience.
Or, to put it another way, perhaps our embedded political and business élite would prefer to be exempt from the idea that human rights can form a component, however uncomfortable, of rule of law necessary in a democracy
In an interview with BBC Radio Northampton on Friday 3 October , I discussed the legal problems and the wider political implications of the proposal, which are further developed in this article. Including the possibility that it may have been inspired by the Conservative Party fear of losing more seats at the next election, a short-term party political move to deflect the pressure it feels from UKIP and its anti-European supporters.
The other points we discussed in the interview included the reputational damage the proposal could cause to UK’s international standing as one of the leading countries in setting human rights standards and upholding the principle of the rule of law, and the adverse impact on UK’s continuing meaningful and effective participation in international bodies and organisations.
Accordingly it seems that our fundamental freedoms are at stake. As we have discussed, in the light of the inadequate, unworkable and legally illiterate proposals to reform UK human rights law, it is questionable that ‘common sense’ alone unsupported by legally informed principles and values will reaffirm our profound belief in fundamental freedoms which form “foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend” says the Preamble to the European Convention on Human Rights.
Links and notes:
- Available at http://www.theguardian.com/politics/interactive/2014/oct/03/conservatives-human-rights-act-full-document
The idea of the doctrine of a ‘living instrument’ is that a written constitutional document such as the Convention is interpreted according to ‘present-day conditions’. See for instance: Letsas, George, ‘The ECHR as a Living Instrument: Its Meaning and its Legitimacy’ (March 14, 2012). Available at SSRN: http://ssrn.com/abstract=2021836 or http://dx.doi.org/10.2139/ssrn.2021836
A copy of the Human Rights Act 1998 is available at http://www.legislation.gov.uk/ukpga/1998/42/contents
See Liberty ‘Legally Illiterate’ available at https://www.liberty-human-rights.org.uk/news/latest-news/legally-illiterate
The interview with Dominic Grieve is available at http://www.bbc.co.uk/news/uk-29472750
See ‘Responding to human rights judgments’ Ministry of Justice Report to Parliament October 2013 available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/252680/human-rights-judgments-2012-13.pdf
A. Young, ‘HRA Howlers: The Conservative Party and Reform of the Human Rights Act 1998’ U.K. Const. L. Blog (7th October 2014) (available at http://ukconstitutionallaw.org)
You can listen to the interview at http://www.bbc.co.uk/programmes/p0270nm6 . My section of the programme starts at about 1:04 hours in after the 5 pm news.
The Preamble also records the resolution of the signatory countries that: “…as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration.” Available at http://www.hri.org/docs/ECHR50.html#C.Preamble
Suggested citation: J Ressel ‘Human rights, the law, common sense and the question of freedom.’ Law, Cult. & Ideas Blog (8 October 2014) (available at https://lawcultureblog.wordpress.com/ )