The Conservative Party’s Proposals for human rights – John Wadham

The October 2014 Conservative Party proposals promised to: 

End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement.

In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights, at the point
at which our Bill comes into effect.” (see proposals here )

The Conservative Party’s manifesto included a much shorter summary of the proposals without the specific details about the relationship with the ECtHR of the Council of Europe and the Queen’s Speech on 27^th May promised that there would be a consultation exercise (see summary here)

The ECHR, withdrawal and expulsion 

A law which rendered ECtHR judgments ‘advisory’ would breach Article 46 ECHR, which requires signatory states – as a matter of international law – to abide by the ECtHR judgments against them. Withdrawal from the ECHR is relatively easy procedurally because it is in the hands of the government although this would probably require the consent of Parliament. (see relevant legislation here).

Article 58 of the ECHR itself allows a state party to denounce the Convention and withdraw from the jurisdiction of the Court on giving six months’ notice. For on-going or existing cases a denunciation does not prevent the Court giving judgment or compensation being ordered. Withdrawal from the ECHR does not, however, automatically require withdrawal for the Council of Europe (or from the EU). Withdrawing from the ECHR itself does not necessarily mean that the UK would not be upholding the values set out in the Council of Europe’s statute (a requirement of membership) but the expectation of all new Council of Europe member states is that they would ratify the ECHR and sign up to the right of individual petition and the jurisdiction of the ECHR.

No state has ever been expelled from the ECHR but Greece, during the time of the military junta, chose to withdraw (it is likely to have been expelled anyway).

Greece, following the installation of the Colonels’ military dictatorship in 1967, withdrew from the Council of Europe in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime. Turkey was suspended, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place. Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

Timetable and tactics 

However some in the Conservative Party might wish to “trigger” an expulsion instead of withdrawing from the ECHR and therefore might choose to wait until after the new UK government has tried to negotiate a deal which relegates judgements to the status of advisory opinions (unlikely) and can say that “Europe” refused to budge.   There maybe tactical reasons why such negotiations with the Council of Europe would be better left after the proposed Bill of Rights has been passed by Parliament (if that ever happens).   However, the rejection of the Conservative government’s proposals will not obviously lead to the UK’s expulsion from the ECHR.

What is a more likely scenario, particularly given the delay in implementation of the British Bill of Rights announced in the Queen’s Speech, is that a final judgment in a pending case by the ECtHR will require legislative change. Parliament, given the new Conservative majority and October proposals, might choose to reject the proposed changes in UK domestic law required by the judgment.   As a result the Committee of Ministers, who are charged with ensuring that judgments of the Court are implemented, will put pressure on the UK to comply and will eventually need to consider sanctions (the Committee of Ministers’ review of the failure to implement the “Prisoners’ voting case” is planned for September 2015).

The Committee of Ministers of the Council of Europe has the power (which it has not yet ever used) to refer a refusal by a state to implement a judgment back to the European Court of Human Rights itself. The Committee of Ministers needs a two-thirds majority to take this action and the representatives from other member states will be very reluctant to take this step (Article 46(2)).

Link to repeal of HRA and domestic law 

Contrary to the implication in the October proposals, any change in the law as a result of a judgment by the ECtHR already requires the consent of Parliament because it is only Parliament that can change the law. In the past changes to UK law resulting from judgments of the ECtHR have usually been seen as relatively uncontroversial and the proposed provisions have been added to another, unrelated, government bill and often passed without any serious debate (reports of Parliament’s Joint Human Rights Committee. )

The current procedure contained in the Human Rights Act does, however, allow the government to amend legislation more quickly following a judgment from the ECtHR or a declaration of incompatibility from a UK court. This procedure allows the government to use secondary legislation to amend the offending primary legislation (section 10). The instrument needed to change in the law does not then need to be in the form of an ordinary bill and to go through all the three stages and in both Houses of Parliament. A “Remedial Order” still needs to be approved by both Houses but usually there is no possibility of amendment and the debate is short (to 31^st July 2013 19 final declarations of incompatibility had been made, only three were resolved using this process). However following the judgments in the ECtHR on the right of prisoners to vote in elections some Parliamentarians arranged for a debate in Westminster Hall on the judgment and the possible proposals to amend UK law. This debate would not have led to changes in the law itself but the strength of the opposition to the idea of given prisoners the vote had a significant political affect (the vote was 234 to 22 in favour of retaining the current ban, 10 February 2011).

Conclusion 

At present the ECtHR system is subject to a fundamental and long-term review and in November 2013 the Council of Europe initiated a further consultation exercise:

…holding an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights. This process follows on from the Brighton Declaration, adopted at a High-level conference in April 2012. It is intended to be open and inclusive, allowing questions to be raised and examined concerning all aspects of the Convention system and the Court (see the proposals here).

This gives a new UK government an opportunity to make proposals to change the current system.

Insiders in the Council of Europe do not want to see the UK withdraw from the ECHR or to see it forced to leave the system because the UK is seen a model of compliance with the ECHR; supports the aims and objectives of the ECHR and the Council of Europe; UK civil servants put in more than their share of the effort to make the systems work and pays its contributions and; if the UK left the ECHR, it would make a large dent in the comprehensive coverage by the ECHR across Europe and send a particularly powerful negative message to states with very poor records of compliance.

John Wadham is currently acting as freelance advisor to the Council of Europe and providing strategic and legal advice on all the recent political party’s proposals on human rights.