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Sending rights abroad

John Smith QC made a speech on 1 March 1993 entitled “A Citizen’s Democracy” in which he called for a ‘new constitutional settlement, a new deal between the people and the state that puts the citizen centre stage’. This objective found its way into the Labour Party’s proposals for constitutional reform published in 1993, and reiterated at their Conference in that year where a two-stage process was outlined: the incorporation of the Convention, followed by the setting-up of a Commission to prepare a British Bill of Rights.

In 1994, Lord Lester QC introduced a bill in the Lords which was based on the New Zealand Bill of Rights which would give the ECHR a similar status in UK law as that accorded to European Community law, i.e. allowing courts to disapply future and existing Acts of parliament, which were incompatible with the ECHR, imposing a duty on public authorities to comply with the ECHR and making provision for effective remedies (including damages) for breaches of the ECHR.

Lord Lester QC, of Blackstones Chambers, is recognised by Chambers UK 2012 as a leading silk in Administrative & Public law and Human Rights & Civil Liberties, with commentary that he “remains a much-revered figure of the Bar when it comes to constitutional and human rights-related public law issues.”  He“remains one of the first names out of the hat for solicitors who require a practitioner with a wealth of human rights law expertise. His knowledge of the law is such that he took a major role in the promotion of the Equality Bill, which subsequently came into force as the Equality Act 2010.”

Upon the advice of senior members of the judiciary, a second bill was introduced in February 1997 which, unlike the first bill, did not confer the power on the courts to strike down Acts of Parliament. The bill had been introduced shortly after the publication on 18 December 1996 by the shadow Labour Home Secretary Jack Straw of a consultation paper headed “Bringing Rights Home” which put forward the case for incorporation of the ECHR into domestic law. The rationale for introducing the Human Rights Act is clearly set out there:

The United Kingdom is bound in international law to observe the Convention, which it ratified in 1951, and is answerable for any violation. In some limited circumstances, the United Kingdom courts can already take the Convention into account in domestic proceedings. But public authorities in the United Kingdom are not required as a matter of domestic law to comply with the Convention and, generally speaking, there is no means of having the application of the Convention rights tested in the United Kingdom courts. The Government believes that these arrangements are no longer adequate, given the importance which it attaches to the maintenance of basic human rights in this country, and that the time has come to “bring rights home”.

The election of Tony Blair’s Labour Party in May 1997 led to the publication of a white paper on the bill – “Rights Brought Home: The Human Rights Bill”. The Bill received its second reading on 3 November 1997. The Liberal Democrats supported the bill, as did several cross benchers  including Lord Bingham. The bill was opposed by the Conservative Party. Historically, the Liberal Democrats had been very supportive of the Human Rights Act; for example, here is Nick Clegg pledging to protect the Act last year.


“So let me say something really clear about the Human Rights Act. In fact I’ll do it in words of one syllable: It is here to stay!” (Nick Clegg)

If the Human Rights Act were abolished, citizens would be able to free to try to take a case to Strasbourg, unless the UK left the European Convention of Human Rights (some say that we would have to leave Europe virtually to achieve this). This argument has been explained at length previously on this blog (in this article). A further complication is added by the changing nature of the Strasbourg Court, as described in a recent article by Noreen O’Meara on the ‘Brighton Declaration’ (on the Human Rights Blog):

A second reform which strays into the territory of affecting the role and function of the Court involves a new mechanism entirely.  The proposed ‘advisory opinion’ mechanism (para 19(d)) would allow highest national courts to refer questions to Strasbourg, and allow national courts to apply the opinions provided to the facts of cases.  Once the national judge does so, this would (in all but exceptional circumstances) prevent a further application to the Strasbourg court.

Too much is left to chance.  This human rights version of the ‘preliminary reference’ model in EU law is couched in language which could harm comity and access to justice.  Its current loose drafting should itself be a warning bell to the negotiators.  Every proposed element of the procedure is optional (the mechanism is opt-in, highest national courts would have discretion on whether to use it, advisory opinions delivered by Strasbourg would be non-binding; and above all, litigants would “not ordinarily” have recourse to the ECtHR in the same proceedings following a national court’s application of an opinion to the facts.  The extent to which this initiative would impact the Strasbourg court’s docket would depend on its approach to delivering advisory opinions—the ECtHR may have considerable latitude here.

While this proposed mechanism may achieve aims of developing a more co-operative dialogue between national judges and the Strasbourg court, its strict approach against applications to Strasbourg where the mechanism is used seems to be a further attempt to relegating the EctHR’s function as the ultimate arbiter in human rights disputes concerning the Convention.  Nevertheless, it’s possible that this measure may have more continental appeal and that a more robustly drafted version may prove workable.  The ECtHR plans to issue a ‘reflection paper’ on this proposal in the near future.

The bill successfully negotiated the Commons and the Lords as the Human Rights Act [1998], and entered into force on 2 October 2000.

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