Will the UK Supreme Court really become

the ultimate arbiter of human rights matters in the UK?

The manifesto on which the Conservative Party fought the General Election on 7 May 2015 made the following commitment:

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.” (page 60)

These measures were mooted last October in a Conservative strategy paper, entitled Protecting human rights in the UK.

European Court of Human Rights is the ultimate arbiter now

The manifesto omits to mention that, at present, the UK is under an international treaty obligation to accept the European Court of Human Rights based in Strasbourg as “the ultimate arbiter of human rights matters in the UK”. The treaty in question is the European Convention on Human Rights, which the UK had a large part in drawing up and to which the UK has been a party for over 60 years.

Article 46(1) of the Convention states:

"The High Contracting Parties undertake to abide by the final judgment of the [European] Court [of Human Rights] in any case to which they are parties."

So, as long as the UK remains a party to the Convention, it is obliged to abide by the final judgment of the European Court in any case to which it is a party, including in cases where the judgment of the European Court conflicts with that of the UK Supreme Court. In other words, as a party to the Convention, the UK has an existing international treaty obligation to accept the European Court as “the ultimate arbiter of human rights matters in the UK”.

Will the Government withdraw from the Convention?

Of course, the UK could withdraw from the Convention and dispense with this international treaty obligation – and the UK Supreme Court would then become “the ultimate arbiter of human rights matters in the UK”.

But the Conservative manifesto does not make a specific proposal to that effect and subsequent to the election, the Government has refused to rule in or to rule out withdrawal from the Convention. In the House of Commons on 28 May, in answer to questions from Yvette Cooper for Labour, Michael Gove, who as Minister of Justice is responsible for implementing these proposals, refused three times to do so. The Prime Minister has been equally evasive. Asked by Conservative MP Andrew Mitchell at PMQs on 3 June “to make it clear that he has no plans” to withdraw from the Convention, he delivered the following piece of rhetoric designed to keep his anti-European backbenchers happy:

“We are very clear about what we want: British judges making decisions in British courts, and the British Parliament being accountable to the British people. The plans that were set out in our manifesto do not involve us leaving the European convention on human rights, but let us be absolutely clear about our position if we cannot achieve what we need – I am very clear about that. When we have these foreign criminals committing offence after offence, and we cannot send them home because of their ‘right to a family life’, that needs to change. I rule out absolutely nothing in getting that done.”

If he is to live up to this rhetoric about deporting “foreign criminals”, he would be well advised to deprive them of access to all courts, not just foreign ones.

(Incidentally, does the Prime Minister not realise that British judges already make decisions in British courts and that the British Parliament is already accountable to the British people? There has just been an election after all.)

The UK Supreme Court: the ultimate arbiter in practice?

So, what will the Government do about the Convention? Answer: probably, nothing. So, how will it achieve its manifesto commitment to “make our own Supreme Court the ultimate arbiter of human rights matters in the UK”? Answer: it will probably attempt to achieve it in practice by refusing to abide by the relatively few judgments of the European Court that it doesn’t approve of and/or are at variance with those of the UK Supreme Court.

Of course, this will mean that in each case the UK will breach its international treaty obligation, as a party to the Convention, to abide by judgments of the European Court. Theoretically, the UK could get expelled from the Council of Europe, the body responsible for the Convention, for failing to do so, but in practice expulsion is inconceivable.

However, failing to do so will undermine the UK’s ability to lecture other states around the world about failing to honour international treaties and abide by international law. But, from that point of view, withdrawing from the Convention would be much worse. How could the UK continue to preach to states about the universality of human rights if the UK itself withdraws after 60 years from a human rights convention it helped draw up? How could the UK seek to persuade states to submit to international systems of justice like the International Criminal Court if the UK itself withdraws from the jurisdiction of the European Court of Human Rights, because it didn’t like a few of its judgments?

A British Bill of Rights

In addition to making the UK Supreme Court “the ultimate arbiter of human rights matters in the UK”, the Conservative manifesto promised to “scrap the Human Rights Act, and introduce a British Bill of Rights”.

The Human Rights Act, which was passed by the Labour Government in 1998, put the European Convention on Human Rights into UK domestic law and enabled individuals to have their Convention rights enforced in UK domestic courts without having to take a case to the European Court. However, it continued to be open to individuals to do that if they wished.

In upholding an individual's Convention rights, Section 2 of the Human Rights Act obliges UK courts to "take into account" any "judgment, decision, declaration or advisory opinion of the European Court of Human Rights". This attempts to ensure that decisions by UK courts are in harmony with the superior European Court.

The British Bill of Rights the Conservatives propose as a replacement for the Human Rights Act will also write the European Convention into domestic law. But, assuming the principles outlined in last October’s strategy paper are reflected in the Bill, some of the rights enshrined in the Convention will be qualified significantly. For example, the strategy paper says:

"Our new Bill will clarify ... limitations on individual rights in certain circumstances. So for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 [right to family life] to prevent the state deporting them after they have served their sentence.”

Furthermore, unlike the Human Rights Act, the British Bill of Rights will not oblige UK courts to take account of rulings by the European Court of Human Rights.

However, assuming the UK remains a party to the Convention, an individual will still have the right to take a case to the European Court and potentially have a judgment of the UK Supreme Court overridden. Because the British Bill of Rights is going to contain a qualified version of the Convention rights and will not oblige the UK Supreme Court to take into account rulings by the European Court, it is likely that the judgments of the UK Supreme Court will diverge to a greater extent than before from those of the European Court.

If they diverge, which judgment is the Government going to apply? Presumably, a Government committed to the UK Supreme Court being “the ultimate arbiter of human rights matters in the UK” will always apply its judgments. This could mean the Government deporting a foreign national even though the European Court had declared that to be in breach of the Convention.

Bill dead in the water?

Of course, notwithstanding the Prime Minister’s bluster, the Government’s proposals may already be dead in the water. True, in the Queen’s Speech on 27 May, the Government undertook to “bring forward proposals for a British Bill of Rights”. Here, it is worth noting that in last October’s strategy paper the Conservative Party promised to “shortly publish a draft British Bill of Rights and Responsibilities for consultation” but it didn’t. Now the Government isn’t even promising to publish a draft bill, merely to bring forward proposals for one (without “responsibilities”).

If a Bill eventually emerges, it is by no means certain that the Government will be able to get it through the House of Commons, and it is likely to be rejected by the House of Lords. The Government’s overall majority in the Commons is slim and several of its senior backbenchers are opposed, for example, Dominic Grieve (former Attorney General), Kenneth Clark (former Minister of Justice), David Davis (former shadow Home Secretary), Damian Green (former justice minister) and Andrew Mitchell (former Chief Whip). And, with the possible exception of the Unionist parties from Northern Ireland, it is not going to get any assistance from the opposition parties to pass the Bill.

(Dominic Grieve served as Attorney General for four years until he was removed from his post in July last year. He described the proposals set out in the Conservative strategy paper last October as "almost puerile", adding: "I also think they are unworkable and will damage the UK's international reputation.")

Implications for Northern Ireland

Repealing the Human Rights Act, as the Government is proposing, would have serious implications for the political settlement in Northern Ireland. The 1998 Belfast Agreement, which formed the basis of that settlement, includes a commitment by the UK Government to “complete incorporation into Northern Ireland law of the European Convention on Human Rights with direct access to the courts, and remedies for breach of the Convention”. This was achieved by the Labour Government passing that Human Rights Act for the UK as a whole in 1998.

It would be a clear breach of the Belfast Agreement to repeal this Act, unless the Convention was put into Northern Ireland law by other means. The proposed British Bill of Rights would not suffice since the indications are that it will contain a modified version of the Convention.

This is not just a domestic matter for the UK – the Belfast Agreement was endorsed by referenda in the Irish Republic and Northern Ireland and incorporated into an international treaty with the Irish Republic, which was deposited with the UN. It certainly cannot be changed without the consent of the Irish Republic.

Implications for human rights under devolution

The existence of devolution in Northern Ireland, Scotland and Wales imposes considerable restraints on the ability of the UK government to alter the human rights regimes in these areas.

The complications involved in this are explained by Colm O’Cinneide, a reader in law at University College London, in a March 2013 paper Human Rights, Devolution and the Constrained Authority of the Westminster Parliament.

The key fact here is that there are provisions written into the devolution statutes requiring the devolved legislatures and executives in Northern Ireland, Scotland and Wales to comply with the European Convention on Human Rights and there are other provisions enabling the devolved legislatures to extend human rights protection further.

The Human Rights Act is Westminster legislation which imposes duties on public authorities throughout the UK. Obviously, the Westminster Parliament has the power to amend or repeal as it sees fit. Likewise, the UK’s withdrawal from the European Convention is matter reserved to the Westminster Parliament and is outside the remit of the devolved legislatures. However, as I indicated above, human rights protection is not wholly reserved to Westminster but the devolved bodies in Northern Ireland, Scotland and Wales have also got a role.

This introduces serious complications for a UK Government determined to replace European Convention rights across the UK with a ‘British’ variant. As Colm O’Cinneide writes:

“For example, any change to the current requirement that the Northern Irish, Scottish and Welsh legislatures must comply with Convention rights would affect the scope of their devolved powers: as a result, under existing constitutional arrangements, it would appear to trigger the Sewel Convention, meaning that Westminster would ‘normally’ have to seek the consent of the devolved legislatures before it could legislate in respect of human rights law as it applies in respect of devolved matters.

“Furthermore, because the devolved legislatures are able to take steps to extend human rights protection, they have the power to minimise the impact of any reduction of rights protection brought about by Westminster legislation within the sphere of devolved functions. Thus, for example, if the Westminster Parliament wished to root out the Convention rights from UK law and replace them with home-grown ‘British’ variants through a new Bill of Rights, it would either have to leave intact the provisions of the devolution legislation that require the Northern Irish, Scottish and Welsh legislatures to comply with Convention rights, or else seek the consent of the three legislatures to the removal of Convention rights from the devolution framework.

“Furthermore, even if such consent was forthcoming, or the Westminster Parliament chose simply to disregard the Sewel Convention, the devolved legislatures might subsequently be able to restore much of the status quo within the sphere of devolved functions. For example, if Westminster were to repeal the HRA [Human Rights Act], the Scottish Parliament would appear to have the power to introduce a ‘Scottish HRA’ or an equivalent measure in respect of devolved matters, which could provide an equivalent or even greater level of rights protection within its sphere of application than currently available under the HRA.”

Perhaps, it would be wiser to leave things as they are.

David Morrison

13 June 2015

Related article:

Will a Conservative government withdraw from the European Convention on Human Rights?