Adam Wagner (One Crown Office Row and founder of RightsInfo.org) gave a very timely seminar on 12 May 2015 for the OxHRH and the Oxford Martin School Human Rights for Future Generations Programme on the future of human rights in the UK under the new the Conservative majority government. The seminar asked two crucial questions: what will they do? And what can human rights activists do?
What Will They Do?
The Conservative Policy Document from October 2014 provides some detail. Wagner analysed six key points from the Policy Document. First, the Conservatives propose that the judgments of the European Court of Human Rights (ECtHR) be deemed advisory and only become binding when Parliament should enact it legally. This demonstrates a misunderstanding of the current dualist position between domestic and international law. They further propose that the there be established a cross party Parliamentary committee that will consider the judgment. There have long been calls to establish a committee to review ECtHR judgments, so this proposal is not a radical as it may first appear.
Second, the policy document calls for a formal break between the UK courts and the ECtHR. By this they mean to remove s. 2 of the HRA which requires the UK courts to take account of the ECtHR jurisprudence. Wagner points out that this does not prohibit the court from having the discretion to take account of this jurisprudence. He argues courts are likely to still take account of developments in the ECtHR because a) it makes good legal sense to understand how a similarly situated human rights body answers a similar human rights question and b) if the UK courts completely disregard the ECtHR the individual would still has the right to appeal the ECtHR because repealing the HRA does not mean there has been a formal withdrawal from the European Convention on Human Rights. With the right to go to the ECtHR still in place, conflicting case law from the UK and ECtHR creates legal uncertainty and it is likely the UK Supreme Courts will still work towards legal harmony with the ECtHR.
Third, the Conservative government will repeal the HRA, but keep the provisions of the ECHR. However, the British Bill of Rights will contain stronger interpretative provisions to limit the scope of some of the rights in the ECHR.
Fourth, the new Bill of Rights will ‘weed out’ trivial cases and import a serious case threshold. The potential serious case threshold still provides a lot of scope for judges to interpret this standard to ensure individual are still able to access the courts.
Fifth, the Bill of Rights will incorporate and clarify the ECHR. This is where the Conservative government could be setting up a conflict with the ECtHR. The Policy Document wants to amend Article 3 of the HRA and remove the “real risk test.” This relates to deportation. Removing this test would allow the Conservative government to deport an individual to a country where the face a real risk of torture, harm or humiliation which is in direct conflict with an established line of reasoning from the ECtHR.
Sixth, the Conservatives will restrict the territorial scope of human rights to the borders of the UK. This is meant to ensure that British service men and women are not bound by human rights obligations. This in itself can be problematic but also means that British citizens cannot avail themselves of the protections of the HRA outside of the UK.
Wagner argues that there are four possibilities: (i) that there will be a bill of rights ‘max’ that incorporates all of the Conservative government’s proposals; (ii) that there will be a bill of rights ‘medium’ where the most controversial aspects of the bill will be negotiated away in Parliament; (iii) bill of rights minimum that makes some minor changes to the HRA and (iv) the HRA remains.
What Can We Do?
While the outlook for human rights in the UK may appear dim, there is still important work to be done by human rights activists. It is important to reach out and try to find a middle ground. Second and perhaps most important is changing public perception on human rights by make the positive case for a continued commitment to a robust human rights system. It is necessary to work towards creating a culture that sees the values of human rights and places them at the centre, so that it becomes political unfeasible to scale back the human rights protections that already exist.