Joint Committee on Human Rights

Joint Committee on Human Rights Written Evidence

5. Memorandum from the Centre for Public Law, University of Cambridge

The following is the response of members of the University of Cambridge Centre for Public Law to the Joint Committee's call for evidence as part of its enquiry entitled "A British Bill of Rights". We have chosen to focus on what we believe to be the central question of the relationship of any such Bill of Rights with the Human Rights Act 1998 ("HRA") and the European Convention on Human Rights ("ECHR").

THE UNITED KINGDOM'S INTERNATIONAL OBLIGATIONS UNDER THE ECHR

In contemporary political discourse on human rights issues, the possibility of a British Bill of Rights has been mooted, at least in some quarters, as a way of addressing perceived difficulties arising under the current system. For example, it has been argued that a clearer—perhaps different—balance needs to be struck between the rights of individuals and the interests of society as a whole,[17] and that the HRA, in adopting an off-the-peg solution through the giving of effect in domestic law to certain ECHR provisions, has failed to supply a regime that is adequately tailored to the needs of the United Kingdom.[18] The principal focus of such dissatisfaction with the HRA has been the absolute prohibition, held by the European Court of Human Rights (`ECtHR') to be inherent in Article 3 ECHR,[19] on the deportation of individuals to states where they face a real risk of torture or of inhuman or degrading treatment—something which has obvious implications for the so-called war on terror.[20]

Against this background, it is important to emphasise that the rights to which the HRA gives effect in domestic law derive from a treaty which is binding upon the UK as a matter of international law.[21] Consequently, if it is felt that the ECHR strikes an inappropriate balance between individual and collective interests, replacing the HRA with a British Bill of Rights is not the solution: whatever the terms of such national legislation, the UK would remain subject to the ECHR in international law. Due appreciation that the legal position is thus—something which has regrettably not always been in evidence thus far in the debate about human rights protection in the UK[22]—suggests that a British Bill of Rights would have to take effect on one of the two following bases.

A BILL OF RIGHTS AS AN ALTERNATIVE TO THE ECHR

The UK could repeal the HRA and withdraw from the ECHR, replacing the current regime with a domestic Bill of Rights. Since none of the major political parties appears to be seriously contemplating such drastic action at present, we will comment only briefly on this issue, pointing out that, while legally possible,[23] withdrawal would be a far from straightforward matter.

First, considerable political difficulty—both domestically and internationally—would presumably attend a decision by the UK government that it was unwilling to guarantee to those within its jurisdiction a set of human rights currently binding upon 47 European states. As a member state of the EU, it would seem curious for the UK to appear to be repudiating its human rights obligations in international law at a time when human rights compliance is one of the accession criteria applied by the EU to aspiring new members as part of its enlargement process.

Secondly, the ECHR would remain binding upon the UK whenever the implementation of European Community law was at stake.[24]

Thirdly, the UK is a party to other human rights instruments, some of which include wider rights than those contained in the ECHR.[25] Unless those treaties were denounced at the same time as the ECHR, they would remain binding upon the UK in international law.

Fourthly, it is far from clear that repeal of the HRA coupled with withdrawal from the ECHR would yield a blank canvas upon which a domestic Bill of Rights could be formed: human rights norms akin to those enshrined in the ECHR were applicable in domestic courts in certain circumstances prior to the entry into force of the HRA,[26] and more recent judicial decisions have highlighted Convention rights that reflect or have been absorbed into the common law.[27]

Indeed it is likely that repeal of the HRA and withdrawal from the ECHR would create a situation of great complexity and uncertainty, to the disadvantage of individuals and public authorities alike. This would run counter to the view advanced last year by the Government that the principal difficulty with the HRA has not been the content of the Convention rights to which it gives effect, but uncertainty about the extent to which they curb executive action, leading certain government bodies to exhibit unnecessary caution in acting as guardians of the public interest.[28]

A BILL OF RIGHTS AS A SUPPLEMENT TO THE ECHR

A limited consensus appears to be emerging—at least within the two main political parties—that a British Bill of Rights should supplement, rather than replace, the ECHR. However, while such an approach is less inherently problematic than withdrawal, a number of difficulties would have to be addressed. Here, we focus on a set of issues emanating from the central question of the relationship between a domestic Bill of Rights and the ECHR. We do so by reference to three (inter-related) strands within current political discourse.

THE CONTENT OF A BRITISH BILL OF RIGHTS

A distinction is presumably envisaged between the rights that would be protected by a domestic instrument and those enshrined in the ECHR: if the position were otherwise, the former would serve no purpose. Such a distinction may take one of two forms.

First, a British Bill of Rights may confer broader rights on individuals than those which they enjoy under the ECHR—a possibility canvassed in the recent green paper.[29] One possibility is that a domestic Bill of Rights might include a right to trial by jury (although such a right would curtail some of the policies of recent Conservative and Labour governments). Another possibility might be to include a right to administrative justice, or some social rights, for example to adequate housing or health care. However, such rights, included in South Africa's Constitution Act 1996, raise their own problems in their relationship to government policy-making and other rights. While an "ECHR-plus" model would be legally straightforward in that the ECHR sets minimum standards for human rights protection, difficulties could nevertheless arise in respect of the relationship been domestically enhanced rights and standard ECHR rights. For example, if a domestic Bill of Rights conferred a right to respect for private life broader than that recognised under the ECHR, this may lead British courts to make decisions placing greater restrictions on the right to freedom of expression than those permitted under the Convention, raising the prospect of subsequent challenges in the ECtHR.

Secondly, domestic law may confer fewer rights on individuals than those currently provided for under the ECHR. (Indeed, the Leader of the Opposition has indicated that a British Bill of Rights may be narrower in scope than the ECHR.)[30] This would be more obviously problematic in that individuals would remain able to enforce their ECHR rights but would have to do so in the ECtHR, thus undermining the HRA's central objective of "making more accessible the rights which the British people already enjoy under the Convention"—"[i]n other words, ... bring[ing] those rights home".[31] Removing the jurisdiction of UK courts to enforce the full range of Convention rights would be a retrograde step, reinstating what the government in 1997 called the "long and hard" "road to Strasbourg", the existence of which, according to the white paper which made the case for the HRA, would serve the interests of a "government which was half-hearted about the Convention" but which would not be "in keeping with the importance which this Government attache[s] to the observance of basic human rights".[32]

DEFINING THE RIGHTS PROTECTED BY A BRITISH BILL OF RIGHTS

The Leader of the Opposition has called for "[g]reater clarity and precision" in this area, "as opposed to vague general principles, which can be interpreted in many different ways",[33] while the government's recent green paper on constitutional reform also emphasises the need for human rights to be defined with greater clarity.[34] The argument that the law should be clear is an obviously attractive one, but these proposals require further thought in terms of both their purpose and execution. If the intention is to produce a text which will in itself be sufficient to convey to citizens and public authorities the precise content and limits of relevant human rights,[35] this would require a Bill of Rights drafted in highly detailed terms which would risk making it inflexible, potentially necessitating regular amendment.[36] Such an approach would also raise the prospect of a disjunction between a domestic Bill of Rights and the ECHR, as it is possible to envisage circumstances in which a detailed domestic instrument laid down clear restrictions on a given right which later turned out to go beyond the restrictions permissible under the ECtHR's developing case law. The UK would be bound under international law by the ECtHR's construction of the right,[37] but UK courts would presumably be bound by the less generous domestic provisions. Finally, we note that politicians" calls for rights to be defined more clearly overlook a more fundamental difficulty. However a bill of rights is framed, there will always be intricate questions of interpretation to be resolved in the context of practical instances; and when courts embark on this task they do so against the background of the values already embedded in the common law, legislation and international rights treaties. In a common law constitution like that of the UK, the common law itself is inevitably a key repository of the most important and pervasive values and rights. The assumption that the reach of individuals' rights can be prescribed through the precise wording of a bill of rights therefore implies an incomplete understanding of the nature of our common law constitution.

BALANCING RIGHTS AND RESPONSIBILITIES

It is noteworthy that the government's recent green paper raises the prospect not of a "Bill of Rights", but of a "Bill of Rights and Duties" which "could provide explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others".[38] The green paper notes that this approach would "build on the basic principles of the Human Rights Act"—a recognition, presumably, of the fact that many of the Convention rights to which the HRA gives effect are qualified—but does not indicate how it would differ from the HRA.

It may be envisaged that a British Bill of Rights would impose more severe restrictions on individual rights than those which the ECHR embraces. The Leader of the Opposition clearly had something of this nature in mind when in August 2007 he advocated repeal of the HRA,[39] in response to a decision of the Asylum and Immigration Tribunal that the Act precluded deportation, upon his release from prison, of an Italian national convicted of murder.[40] Although an intention to restrict existing ECHR rights is by no means clearly stated in the 2007 green paper, it is important to emphasise that any such narrowing of domestically-protected human rights would be highly problematic in that there would be no corresponding attenuation of the rights the UK is obliged under the ECHR to secure to those within its jurisdiction. Indeed, the Convention specifically provides that nothing in it "may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention".[41]

Of course, it may simply be that it is envisaged that a domestic Bill of Rights should reiterate, in clearer terms, that balance between individual and public interests which is inherent in the Convention; and it is important to note that, to a limited extent, there is some scope for the UK Parliament to strike that balance for the UK as it sees fit, provided that it does not exceed the national margin of appreciation in doing so.[42] However, such an approach risks arriving—albeit by a more circuitous route—at the same problems as those identified in the previous paragraph. Even if a domestic Bill of Rights were to succeed in articulating the balance between individual rights and the public interest consistently with contemporary ECtHR jurisprudence, there is no guarantee that a detailed legislative elaboration of that balance would remain compatible with the Court's case law, bearing in mind that it regards the ECHR as a "living instrument" the interpretation of which is susceptible to change.[43]

CONCLUSIONS

Our conclusions can be briefly stated. Unless the UK chooses to withdraw from the ECHR—which itself would be fraught with difficulty, and is not a step we favour—any British Bill of Rights ought, as a matter of legal policy, to give effect to the Convention rights and permit British courts to apply those rights in a manner which is compatible, subject to any margin of appreciation, with the jurisprudence of the ECtHR. To this extent, a Bill of Rights would, in essence, need to do what the HRA currently accomplishes. Any attempt to define the relevant rights in terms different from those of the ECHR may be problematic for the reasons advanced above, although a domestic Bill of Rights could legitimately protect a range of rights wider than that recognised by the ECHR provided that new (or expanded) domestic rights did not encroach upon existing Convention rights.

Professor Trevor Allan.

Dr Mark Elliott.

Professor David Feldman.

Professor Christopher Forsyth.

Dr Stephanie Palmer.

Dr Amanda Perreau-Saussine.

Mr Jake Rowbottom.

Professor Sir David Williams.

29 August 2007

17 See, eg, David Cameron, "Balancing freedom and security-A modern British Bill of Rights', speech to the Centre for Policy Studies, London, 26 June 2006, http://tinyurl.com/39nrza. Cameron confirmed in a media statement on 21 August 2007 that a Conservative government would "abolish the Human Rights Act and replace it with a British Bill of Rights" (http://tinyurl.com/2sztct). It is unclear whether in its recent green paper (Cm 7170, The Governance of Britain (London 2007)) at 60-1 the government intended to advocate any "rebalancing" between existing rights and other interests; see discussion below. Back

18 We note, in passing, the irony inherent in this view, bearing in mind the central role played by the UK in the drafting of the ECHR. See A W B Simpson, Human rights and the end of Empire: Britain and the genesis of the European Convention (OUP 2001). Back

19 Chahal v UK (1996) 23 EHRR 413. The UK was recently given leave by the ECtHR to intervene in the case of Saadi v Italy (no. 37201/06); it argued the absolute nature of the Chahal prohibition should be revisited. Back