Today a group of scholars, including myself, have released a new policy paper outlining some implications of repealing the Human Rights Act 1998 and, possibly, withdrawing from the European Convention on Human Rights. The paper emerged from a workshop in Edinburgh last March. The workshop was convened by Tobias Locke (Edinburgh) and Kanstantsin Dzehtsiarou (Surrey) who also co-edit the policy paper that has been released today. Following the UK General Election last week and the manifesto pledge to repeal the HRA, we hope that this paper will give some insights into the possible implications and repercussions of the government following through on that pledge. The paper can be downloaded (without charge!) here.
Key findings include:
Any attempt to repeal and/or replace the Human Rights Act would have to take into account the devolution settlement. A repeal of the Human Rights Act might require the consent of the devolved legislatures under the Sewel Convention. A repeal would at present run counter to the UK’s international treaty obligations under the British-Irish Agreement which was incorporated in, and agreed as part of the UK-Ireland obligations under the Belfast (Good Friday) Agreement. A new Bill of Rights may require the consent of the devolved legislatures.
If the Human Rights Act were not replaced, individuals would still be able to rely on common law remedies, as far as they exist, as well as the EU Charter of Fundamental Rights in cases in which the UK has acted within the scope of EU law. Hence, in some areas repealing of the Human Rights Act without more will not lead to the ‘regaining of sovereignty’ anticipated by the proponents of such proposals.
A replacement of the Human Rights Act with a British Bill of Rights would enable Parliament to provide for the protection of additional rights, such as a right to trial by jury. It would also allow Parliament to introduce certain procedural changes, such as no longer making it mandatory for courts ‘to take into account’ the case law of the European Court of Human Rights or to read legislation ‘as far as it is possible to do so’ compatibly with Convention rights. It should be noted, however, that the Supreme Court has relaxed the conditions under which courts are required to follow the European Court of Human Rights and that a removal of these requirements could result in an increased number of cases brought against the UK in the European Court of Human Rights.
A complete withdrawal from the European Convention on Human Rights would deprive people in the UK from the possibility of bringing their human rights complaints to the European Court of Human Rights. However, it would not relieve the UK of the duty to comply with judgments already handed down by the European Court of Human Rights, for instance on prisoner voting. The UK would also be setting a negative example so that the protection of human rights within Europe as a whole would suffer. Withdrawal from the European Convention on Human Rights is technically possible with six months’ notice, however it would lead to wider consequences for the UK’s other international commitments. Long-term membership of the Council of Europe may become impossible.A withdrawal from the European Convention on Human Rights may be incompatible with the UK’s commitments as a member of the European Union. Withdrawal from the European Convention on Human Rights could also result in a substantial reduction of human rights protection for minority and vulnerable groups in the UK.
Over the past year or so I have been working on a small-scale project exploring referrals to the Grand Chamber of the European Court of Human Rights under Article 43 of the Convention.
The project started out with me being interested in why no reasons are given for the refusal to accept a referral request, however it has moved on to concentrate on the concept of ‘seriousness’ as used in the relevant provisions of the Convention and rules of court. The key question that I am concerned with is how we identify which questions are ‘serious enough’ for the Grand Chamber to be convened, bearing in mind that hearing a case before the Grand Chamber involves a substantial investment in time, resources and judicial energies.
Article 43 provides:
- Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
- A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance.
- If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.
The project, which I am now writing up, studies referral requests and decisions from 2011-2014. This confirms that the acceptance rate for referral requests is very low (as demonstrated by the chart to the left) and that the nature of the alleged violation is not, per se, the relevant indicator of seriousness. Rather, seriousness is determined largely by reference to the potential implications of the decision ‘below’ for consistency, evolution and jurisprudential coherence related to the Convention.
I presented this as a ‘work in progress’ to the Oxford Human Rights Hub where I am a visiting fellow this year back in February, and the audio from the presentation is available here. There is a very limited amount of scholarship on Article 43 referrals, at least in English. I would be grateful for suggestions from any readers who are aware of relevant work as I move towards finalising this paper.
I am delighted to see that Ben Saul (ed), Research Handbook on Terrorism and International Law (Edward Elgar) has now been published. This impressive collection covers the widest imaginable range of topics within its broad scope, and includes a chapter by me on counter-terrorist detention and human rights law. A pre-print of the chapter is available on SSRN, and the abstract is below.
In this chapter I consider the compatibility of counter-terrorist detention with international human rights law from the starting point that what is protected in international law is not a right to be free from detention per se but rather a right to be free from the arbitrary deprivation of one’s liberty. This is clearly rooted in international human rights law, which is the main focus of this chapter (acknowledging that it interacts with international humanitarian law in situations of armed conflict).
The chapter demonstrates that counter-terrorist detention can be compatible with the standards of international human rights law as they have been interpreted and applied in the past decade, but that in the process of such interpretation and application those standards have at times been diluted to a worrying extent.
Below is the text of my submission to the public consultation on the longer term future of the ECHR and ECtHR. It focuses on the Court and argues for the prioritisation of constitutionalism over adjudication in the workload of the Court.
Future Challenges to the Convention System
The European Court of Human Rights (ECtHR) faces three particular challenges in the future: the possible breakdown of the relationship between the Court and (some) member states, rights-based implications of social conservatism in some member states, and a persistently high volume of complaints to the Court. Continue reading “Submission on Longer Term Future of the ECHR and ECtHR”