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A British Bill of Rights Part I: Bringing Rights Home

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About The Author

Rhys White (Regular Writer)

Rhys completed his legal studies at the Universities of Winchester (LLB) and Durham (Corporate Law LLM). Alongside his undergraduate studies, Rhys worked part-time in a boutique insolvency firm, learning firsthand the application of law in a commercial setting. Having recently won a scholarship from the University of Law, Rhys is to begin his professional legal qualifications in September 2019.

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To deny people their human rights is to challenge their very humanity

Nelson Mandela

The countdown to Britain’s exit from the legalities of Europe — Brexit — is reaching its pinnacle point; less than 100 days remain until the United Kingdom, the legal pillar of the western world, breaks away from the entrenching powers of European judiciary. Yet, news and media outlets fixate on points of interest that are better geared towards their own monetary returns - rather than forwarding our country’s and its subjects’ - post Brexit. Talk of the economy’s impending doom, a second referendum on the referendum, Article 50’s revocation and finally, Parliament’s incestuous debate about the type of ‘deal’ we should negotiate with Europe, are some of the many reoccurring fads perpetuated.

So let’s shelve the political and economic rhetoric bombasted by the papers and focus on one point, one single legal technicality that every British subject, or individual who falls under British jurisdiction can relate to; one so onerous that has escaped the twittering tweets and ink pressed papers of media outlets: the protection and continuation of civil liberties post Brexit.

The article will address the functioning and reasoning for the protection of civil liberties and human rights in the UK by means of a duology: 

  • This article (Part one) shall address the founding and reasoning behind the Human Rights Act 1998; identifying its European heritage and pondering the possibility of its continuation post Brexit.
  • Part two of the Article shall find itself in more speculative waters; questioning whether the Human Rights Act and all its attached protective measures are needed in a modern society, and, if the Act is repealed post Brexit, how could ‘we’ protect our rights which we have all come to enjoy without a thought to their potential eradication.

The Human Rights Act:

Bringing Rights Home
- Labour Manifesto 1997

In 1998 the Labour Government, under the premiership of Tony Blair, successfully passed a bill (The Human Rights Bill 1997) ratifying the European Convention on Human Rights [ECHR], and bringing it into domestic law (Human Rights Act 1998 – [HRA]). Prior to the HRA, and its legal authority in 2000, the UK had only been bound by the Convention at arm’s length, via its signatory in 1951.

However, this 49-year time lapse between signing up to the Convention and ratification into domestic law was by no means stagnant. Civil liberty movements on both sides of the Atlantic found their audiences tuned into their rhetoric; three years after Martin Luther King Jr gave his distinguishable ‘I have a dream’ speech (1963), the United Kingdom allowed individuals to petition against Her Majesty’s Government for breach of civil and human rights through the European Court of Human Rights [ECtHR].  

Indeed, since 1966 the UK has been found in breach of the Convention more than any European country, with the UK government accounting for 33% of all breaches found against signatories. As a result, over 80 British laws and regulations have either been repealed or amended, including, but not limited to: the prohibition of flogging, caning in schools, and the interrogation of suspected terrorists.

These breaches have also lead to positive obligations being imposed on the state by the ECtHR; key among them being the right for prisoners to communicate with their lawyers unfettered by government interference. Moreover, following the case of Sunday Times v United Kingdom (Application no. 6538/74), Parliament addressed issues surrounding contempt of court and freedom of speech (Contempt of Court Act 1981), allowing individuals a defence of ‘public interest’, should they utter in public something which finds them in breach of court protocol.

These 80 or so laws, many of them barbaric and un-libertarian by modern day standards, found themselves subject to the positive influences of the ECHR, prior to the existence of any human rights/civil liberties codification within the United Kingdom’s statutory book.  However, the question is poised as to why such legislation is required if, as illustrated above, a British subject can bring a claim to the ECtHR without domestic legislation in place.

The answer is short and simple: the domestic courts of the United Kingdom refused to allow the Convention direct interference with domestic disputes. In other words, if a remedy was not provided in domestic law for a breach of human rights (be it via statue or common law) the courts would not apply the Convention, even if a breach existed by the standards/findings of the Convention. A good case to witness this paradoxical legal gymnastics is R v Ministry of Defence ex parte Smith [1996]. Thus, you may bring a claim for a breach of the Convention, however if a remedy did not exist in domestic law to compensate that breach, your claim was a pointless exercise. This casts doubt upon the idea of locus standi (i.e. the idea that an individual may bring a claim to court if they have legal grounds for doing so).

Ergo, it would seem logical and just that a piece of domestic legislation, which protected one's rights and liberties, would be welcomed by the electorate. Years of tyrannical behaviour and the erosion of civil liberties by the governments of the 1970-1980’s had taken its toll.

Labour came to power in the late 1990’s with a landslide victory, advocating a ‘new Labour’ for a new century. At the heart of its campaign was the pledge to bring rights home, establishing a national rights law, for UK nationals, to be heard in national courts. Subsequently, with Labour's majority it was no surprise (nor was it unwelcome) that the European Convention of Human Rights was ratified into the statute books via the enactment of the Human Rights Act 1998. 

In doing so, the HRA brought forth four principal changes to British Law:

  1. It required all public authorities and institutions to act in a manner that was/is compatible with Convention rights (Section 6)
  2. Legislation is to be read in a manner compatible with Convention rights, as far as possible statue allows (Section 3)
  3. Courts must take into account previous and present case law in regards to Convention interpretation and findings, found in Strasbourg (ECtHR) (Schedule 2)
  4. It provided a cause of action and remedy for individuals who find their Convention rights breached by a public institution (Sections 7 and 8)

Thus, cases such as Smith may have had a different outcome if brought post ratification of the Convention. Indeed, since passing of the HRA, UK courts have ruled approximately 40 laws to be incompatible with the Convention. The most prominent and recent of these is the incompatibility of the Civil Partnerships Act 2004, via the finding in R (on application of Steinfeld and Keidan) v Secretary of State for International Development [2018]. The Civil Partnership Act 2004, though allowing same-sex couples to enter into civil-partnerships, barred opposite-sex couples who, rather than marry, would prefer to enter into a civil-partnership; breaching Article 14 and Article 8 of the Convention.

And the above only takes into consideration laws that are incompatible, nothing has so far been said of actual breaches.

In totality, the UK since 1959 has been found in violation of the Convention 526 times, 115 taking place in the last decade. Although the latest statistics to be found stated that the UK was only responsible for 0.2% of total pending judgments before the ECtHR, which may impress many, this dramatically angelic statistic must be met with scepticism. If one looks a little closer in 2016, of the 373 applications brought against the UK in the ECtHR, 360 were struck out; of the 13 heard, the UK was found in violation of the Convention in 7 of them. Which may not seem many, but it does do wonders to statistical figures. That 0.2% quickly turns into a 55% violation/breach case ratio. Truth be told, we can never truly be sure as to what the right picture is. Hence the joke, four economists enter the room, five opinions come out; statistics can show what you want them to show. 

Even if the state was compliant with the Convention 99% of the time, surely it would still be preferable to have the HRA in place than risk being the individuals who form the 1%. How many of us would ever want to be victim to a breach of the law, be it civil or criminal? We all want our rights and liberties to be protected by the law 100%, every time, without doubt, regardless.

However, the future of the HRA, an Act viewed by Lord Wallace as one ‘that serves as a check and balances against the British governments’ interference on day-to-day-life of its citizens’ seems threatened.

Theresa May was quoted prior to the referendum stating that regardless of the outcome, the UK should withdraw from the Convention on Human Rights; keeping in tune with David Cameron’s manifesto pledge of 2015. Post referendum, a read of Hansard will show conservative MPs lobbying the idea that revocation of the HRA is inevitable, with its implementation seen as a teat of Strasbourg: feeding European orientated legislation into the body of the UK statutory books and Court Rooms, leaving Eurosceptics struggling to digest the continental deserts of a won referendum.

Its survival would defy the leave vote.

However, the most recent conservative manifesto states it will not repeal the HRA during Brexit. Its omission to 'spell-out' what will happen post Brexit may leave some suspicious and somewhat uneasy as to what-comes-next? In any eventuality, the finding in R (on application of Miller) v Secretary of State for Exiting the European Union [2017], has clearly stated that Royal Prerogative cannot be used to alter, fetter or frustrate domestic legislation by withdrawal of an international convention. If such 'alteration' or revoking of statue is to take place, its place of death will be in Parliament itself, not around a ministerial dining table. Thus it is Parliament as a whole, not Eurosceptic MPs holding clandestine meetings, who have the final say on the continuation of the HRA.

Thus the question is posed:

What’s next after Brexit? Will the HRA remain, protecting our freedoms, liberties and rights as human beings? Or will our rights be eroded away slowly but deliberately over time, until we only have our fond memories of the ‘liberation revolution’?  

Part 2 of this Article will consider the above questions; pondering a further idea that maybe we’ve come too far and grown too comfortable with the right to rights and liberty; quitting on our rights would be quitting on our liberty & society as we know it.

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Tagged: Brexit, Equality, Human Rights, Public Law

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