The Empire Strikes Back: the Conservative Party’s Plan for Human Rights in the UK

On Oct. 3, the British Conservative party published an eight-page strategy paper, Protecting Human Rights in the UK, that gives a preview of the party’s plan to repeal the United Kingdom’s Human Rights Act 1998, legislation that made it unlawful for a public authority to act incompatibly with the scheduled provisions of the European Convention on Human Rights (ECHR) and required English courts to take account of judgments of the European Court of Human Rights (ECtHR).

The Conservatives argue that the Human Rights Act “goes far beyond the UK’s obligations under the Convention” because the ECHR does not require direct incorporation into domestic law nor for does it require ECtHR jurisprudence to be directly binding on domestic courts.

In the short time since its publication, the paper has attracted wide-ranging and colorful commentary: for the predictably polarized media views see the Guardian’s summary here. Highlights from the paper are below and a draft British Bill of Rights and Responsibilities will (apparently) be published by the party and consulted upon in due course.

First, the ECHR is described as being “an entirely sensible statement of the principles which should underpin any modern democratic nation” (p.2). But action is needed to reform human rights law in the UK “so they are just, credible and command public support” (p.2).

However, the paper claims that the “credibility of human rights at home” has been damaged by “the recent practice” of the ECtHR and the Human Rights Act (p.3).

Specifically, the paper says that by using the “living instrument” interpretative approach, the ECtHR “has developed ‘mission creep’” and then gives examples of cases involving the human rights of prisoners, foreign nationals and murderers where it claims the court has overreached.

The Conservatives go on to claim that section 2 of the Human Rights Act, (which requires English courts to “take account” of ECtHR case law) “means problematic [ECtHR] jurisprudence is often being applied in UK law” while section 3 (which requires English courts to read and give effect to legislation compatibly with Convention rights “so far as it is possible to do so”) has led English courts to go to “artificial lengths” to change the meaning of legislation (p.3). The following passage, relating to the UK’s Misuse of Drugs Act, is given as an example of this.

The Misuse of Drugs Act makes it a criminal act to possess an illegal drug, but provides the defence for the defendant to prove, on the balance of probabilities, that they did not know, suspect or have reason to suspect that what they had was an illegal drug. However in 2001 the House of Lords ruled, under section 3(1) HRA that the Act must be read as only requiring the defendant to submit evidence supporting their claim that they did not know or suspect that what they had was an illegal drug, after which it fell to the prosecution to prove beyond reasonable doubt that they did not know or suspect this. This was done under Article 6 of the [ECHR], the right to a fair trial.

The Conservatives’ proposed reforms will mean: (a) that the ECtHR is “no longer binding over the UK Supreme Court”; (b) the ECtHR is “no longer able to order a change in UK law and becomes an advisory body only” and (c) there is a proper balance between rights and responsibilities in the UK (p.5).

Nine key objectives of the new British Bill of Rights and Responsibilities are identified as follows:

1) “Repeal Labour’s Human Rights Act.”(p.5)

2) “Put the text of the ECHR into primary legislation” because “[t]here is nothing wrong with that original document.” (p.5)

3) “Clarify the ECHR rights to reflect a proper balance between rights and responsibilities.” (p.5) It is said that this will be achieved via  “a more precise definition [of some terms] such as ‘degrading treatment or punishment’, which has arguably been given an excessively broad meaning by the ECtHR in some rulings” and “a clearer test in how some of the inalienable rights apply to cases of deportation …The ECtHR has ruled that if there is any ‘real risk’ (by no means even a likelihood) of a person being treated in a way contrary to these rights in the destination country, there is a bar on them being sent there, giving them in substance an absolute right to stay in the UK.” (p.6)

4) “Break the formal link between British courts and the [ECtHR].” (p.6)

5) “End the ability of the [ECtHR] to force the UK to change the law” by treating every judgment saying that UK law is incompatible with the ECHR as being advisory until considered by Parliament (p.6).

6) “Prevent our laws from being effectively re-written through ‘interpretation’.” (p.6)

7) “Limit the use of human rights laws to the most serious cases” such as (those involving criminal law, the liberty of an individual, the right to property and “similar serious matters”) (p.6).

8) “Limit the reach of human rights cases to the UK so that British Armed forces overseas are not subject to persistent human rights claims that undermine their ability to do their job and keep us safe” (p.7) and

9) “Amend the Ministerial Code to remove any ambiguity … about the duty of Ministers to follow the will of Parliament in the UK.” (p.7)

The Conservatives say they intend to engage with the Council of Europe to seek recognition that “our approach is a legitimate way” of applying the ECHR. However, if agreement cannot be reached “the UK would be left with no alternative but to withdraw” from the ECHR (p.8).

Finally, regarding the EU’s potential adoption of the ECHR, the paper says: “[w]e are mindful that there may be legal implications for our approach once the EU accedes to the ECHR. We will therefore ensure that this is reflected in the rules that will govern the EU’s interaction with the Court. The EU’s application to join the [ECHR] requires the unanimous agreement of all member states, which will allow us to ensure that the UK’s new human rights framework is respected.”(p.8) 

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About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers