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Scrapping the Human Rights Act does not get rid of Strasbourg as a portal of action for health and care matters



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Like most people who’ve had a legal training, I was baffled why David Cameron is so triumphant about scrapping the Human Rights Act (1998). The legal position is that “British citizens would still be able to take cases to the European court of human rights, and its case law and the principles of the convention would still be in force in UK courts.”

This is stated correctly here.

Leading commentators such as Joshua Rozenberg, Britain’s best known legal commentator, have previously advised that the debate must be conducted in a different light from the political grandstanding (article here).

When Dominic Grieve, the previous Attorney General, was asked at a fringe meeting for his reaction to May’s speech, he insisted he was “completely comfortable” with the idea of replacing the existing legislation with a British bill of rights.”

At the time, it was observed that Ken Clarke QC MP, like Dominic Grieve QC MP, was a keen supporter of human rights.

In 2011, when I was studying my Master of Law, I attended discussion at the Honourable Society of Inner Temple last night. The seminar is jointly hosted by the Constitutional and Administrative Bar Association (ALBA) and the new Bingham Centre for the Rule of Law. The speakers included Lord Justice Laws, Lord Pannick QC and Professor Philip Leach, London Metropolitan author, and author of numerous publications including the book “Taking a case to the European Court of Human Rights”. The session was totally packed out, and the speakers took many questions from leading practising international barristers and academics.

It is perhaps easy to overstate the opposition towards the Human Rights Act, but it was pointed out only two countries are openly questioning the legitimacy of the European Convention of Human Rights – Russia and the United Kingdom.

LJ Laws has long been in favour of developing domestic jurisprudence in the context of the Human Rights Act and common law.

He opined at this event that “the cases were beginning to speak, but the Convention was an useful guidance”, and reaffirmed the influence of a graduated approach to proportionality, an argument which Laws noted had been accepted by Bingham (see for example Regina v. Secretary of State For The Home Department, Ex Parte Daly). Laws reminded the legal audience that we, as a country, have always been in a position to influence Strasbourg, as for example the Pretty v United Kingdom case.

Laws further mooted, however, why should the judges be deciding upon social policy. Considering particularly articles 8-12, Laws provided that often lawyers had to decide where to strike the balance in certain issues between competing interest, but fundamentally lawyers were there to establish the framework and issue – however Laws warned that the nature of this exercise in jurisprudence gives rise ultimately to issue of a philosophical nature. I found this academic exploration by Laws interesting in light of how human rights law might impact on aspects of health and care policy in England.

Lord Pannick charted the history of the reaction to our history right legislation, in relation to Strasbourg. Pannick reminded the audience that criticising the Human Rights Act, in relation to Europe, was not a recent phenomenon.

In relation to the Gilbraltar incident, Michael Heseltine – as far back as 1995 – said, “We shall do nothing. We will pursue our right to fight terrorism to protect innocent people where we have jurisdiction, and we will not be swayed or deterred in any way by the ludicrous decisions of the Court.”

According to Lord Pannick, prisoners’ voting rights and the use of hearsay have also produced conflicting opinions from the UK and Strasbourg, and indeed these legal conflicts appear to be ongoing (see for example the present case of Zainab al-Khawaja, where the original argument was heard by the Court in 2010).

Lord Pannick proposed that this conflict arose from various sources. Firstly, Lord Pannick felt there is a general resentment of European law amongst Conservative “elements”, and many of the population. Secondly, the objection to the European Convention of Human Rights could part of a wider objection to foreign law. Lord Pannick indeed reminded the audience that a Conservative MP, lawyer and judge, David Maxwell-Ffye, was instrumental in drafting the European Convention of Human Rights. Lord Pannick then identified a possible perception from the UK voting public, that judges should not be deciding on social policy: for example, the argument for prisoner voting is not a matter for judges, but should be a matter for parliament.

Lord Pannick did not feel fundamentally that the criticisms of the HRA amounted to much. For example, the HRA expressly recognises that the UK Parliament is not bound by the Convention. If Parliament wishes to exclude voting by prisoners, the Human Rights Act does not prevent this. The judges can decide whether the defendants comply, but, according to Lord Pannick, it is equally important that the last word lies with parliament. Lord Pannick instead felt that a much more difficult issue is the relationship between parliament and the Strasbourg Court.

A future ‘all Conservative’ government, even if it repealed the HRA would still leave the jurisdiction of the Strasbourg Court intact – our own judges have no effect on the jurisprudence.

If the 1998 Act were to be repealed, as parliament is overeign, the number of British cases to Strasbourg would increase according to Lord Pannick. Lord Pannick felt that an useful to look at the relationship between our Supreme Court and Strasbourg would be to look at the ‘control of its docket’ jurisprudence, in other jurisdictions of international law.

Lord Pannick ultimately felt that the power of our parliament to define power Strasbourg as a body is limited. It would be unprecedented for us to withdraw from the European Convention of Human Rights, incompatible with membership of the EU, or Council of Europe. According to Lord Pannick, the concept of European minimum standards is of vital importance to us. There may be be occasions when national or international considerations are that our judges do not originally recognise that human rights are being breached (e.g. gays in the military) It would be difficult for us to expect that other countries such as Russia should comply with the Convention, if we do not. Lord Pannick therefore felt that the situation now required an accommodation on both sides.

The Strasbourg is supposed to overrule a National court only in cases of fundamental significance, where the national supreme court has made an error of principle. If Strasbourg does not follow this principle, it may risk the growth of political opposition. However, likewise, Lord Pannick identified that the Supreme Court should not supinely follow Strasbourg, either. The Government for example accepted the DNA ruling in preference ot the House of Lords. If the Supreme Court were to be asked if the voting rule asked about the prisoners’ voting again, Lord Pannick felt that the Supreme Court would be unlikely to say it is compatible with the European Convention of Human Rights.”

The Human Rights Act (1998) is also relevant to aspects of policy relating to people’s health: there have been concerns whether the ‘welfare reforms’ have offended human rights legislation.

There have also been concerns whether the fitness to practise procedures of the GMC need to be explored with the human rights lens?

There are also further issues, unresolved as yet, about whether the Health and Social Care Act (2012) offends humans rights legislation.

Most of this blogpost was first published on Dr Shibley Rahman’s legal blog here.

@legalaware

 

 

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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