A Retreat from the ‘Continental Approach’: The International Legal Implications of the UK Human Rights Act’s Repeal

By Peter Donnelly

The proliferation of threats to human rights speaks to the abiding necessity for robust international and domestic legal standards. When such universally sacrosanct standards are threatened by a State priding itself as a standard bearer for democracy and the rule of law it is admittedly alarming. 

Legal commentators have lately been alarmed by the forceful attitude of some Conservative Ministers. Notably, the recently-appointed Justice-Secretary and Lord Chancellor Dominic Raab who has been mandated to ‘overhaul’ a critical rights safeguard of Britain’s constitutional order – the Human Rights Act 1998 (HRA) – which gives the European Convention on Human Rights (ECHR) domestic effect.

Dominic Raab Secretary of State for Justice and Lord Chancellor.

The UK’s Human Rights Debate: Beyond British Shores

Raab’s comments have resurrected long-standing Conservative desires to curb the HRA, including the desire to cull the influence of the European Court of Human Rights’ (ECtHR). This debate presents more profound questions including the effect the Act’s repeal would have on the UK’s international legal obligations.

A prospective jettisoning of the HRA cannot be viewed in isolation from a potential withdrawal from the ECHR as tampering with domestic human rights standards could be viewed as an impingement on the overarching Convention framework by the Council of Europe. After all, former Prime Minister David Cameron stressed that “absolutely nothing” should be dismissed. The Government’s mixed messaging as to its intentions serve to make this ambiguity more pronounced.

The ‘Sovereignty Effect’

Commentators suggest that the governmental rhetoric of restoring the judicial balance from the ECtHR’s perceived ‘activist’ tendencies towards the domestic domain coupled with Independent Human Rights Act Review (IHRAR) aim “to enhance executive supremacy by treating courts, foreign or domestic, as unwelcome interlopers.”  

For instance, the IHRAR will examine the relationship between domestic courts and the ECtHR, particularly Section 2 (HRA) which mandates UK courts to take “account” of ECtHR jurisprudence. This fixation on ‘sovereignty versus the ECHR’ has been a consistent theme within the ruling party. In an overt statement of ‘keep out diplomacy,’ in The Sunday Telegraph, Raab said he desired to “correct” judgments – domestic or ECtHR – the executive considered “wrong” and prevent the latter body “dictating” how domestic institutions should operate. This appears to be regardless of what the IHRAR’s findings will be, not to mention the effects for the rule of law. Should the HRA be repealed, however, the UK would still, remain legally bound by ‘the final judgment of the [ECtHR] in any case to which they are parties’ (Article 46.1 ECHR).

Raab went to the extent of illustrating the “nonsense” of the ECtHR’s jurisprudence by referencing a contested ECtHR ruling from 2009 in which a foreign criminal invoked Article 8 which permitted him to remain in the UK; such was Raab’s eagerness to emphasise the necessity of removing the ECHR’s ‘foreign’ influences. Set within the international context this represents a retreat toward an insular, anti-globalist philosophy which challenges the HRA’s “continental approach.” A mere cursory scan of the historical context underpinning the ECHR would show that this unified approach to international human rights was crucial to the object of its founding.

Symbolism Over Substance?

The suggestion that the UK Supreme Court could have a final say on matters affecting the ECHR is arguably antithetical to the UK’s obligations under the Convention. It ignores the ECtHR’s function as the Convention’s final arbiter (Article 32, ECHR). As Lord Mackay emphasised, so long as the UK remains party to the ECHR, defined obligations are incurred and cannot be subject to “cherry-picking” no matter how politically uncomfortable.

The Government’s current commentary suggests that it is concerned about removing the ECtHR’s supervisory jurisdiction. Issues including the controversial prisoner voting judgments, have purportedly given human rights “a bad name” and no matter about the legal technicalities these fierce denouncements of the HRA owe more to political symbolism as than substance. Indeed, Human Rights Watch has recently observed the UK’s willingness ‘to set aside human rights’ for political expediency’s sake.

The pre-HRA position, where the civil liberties of the ‘individual’ were protected by the incremental common law methodology of the courts, did not adequately correspond with the UK’s international commitments. To effectively block the ECtHR avenue, as implied, would present adverse implications for citizens’ rights to access to justice; a recognised international law principle (Article 14 International Covenant on Civil and Political Rights).

The Northern Ireland Arena

Pictured the signing of the Good Friday Agreement in 1998 to end conflict in Northern Ireland.

The Belfast/Good Friday Agreement (GFA) is an internationally binding treaty between the UK and Irish Governments; it is lodged as such with the UN. Although the HRA’s repeal would not directly infringe the Agreement, the GFA’s explicit emphasis on both Governments respecting ‘equality requirements,’ within the ECHR, could be ‘undermined’ and risk amplifying the Region’s political sensitivities and Anglo-Irish relations. 

Should the Government advance the HRA’s repeal it would, as a matter of international law, be obliged to retain the ECHR within Northern Irish Law. The unique situation in Northern Ireland where both the HRA and ECHR are within “the fabric of NI Law and the devolved constitution,’ emphasises that the UK’s human rights debacle is not a purely domestic one. Added to this is the context of the EU-UK Trade Agreement (Chapter 3, committing both parties to ‘giving effect to the rights and freedoms in [the.ECHR] domestically.’). It has been observed that this stipulation ‘precludes a more ambitious reworking’ of the HRA as has been implied within Government. 

External influences will have a bearing and any alteration of the GFA would require inter-governmental and cross-party consensus if it is to have any semblance of legality – domestically or internationally.

A Sense of Proportion

The promise of the ordination of a Bill of Rights, as the ‘more British way’ of doing things rings hollow as it was British lawyers, such as Sir David Maxwell-Fyfe, who were central to the ECHR’s formulation. To regard these rights and systems, as enshrined within the HRA, as mere foreign imports in an appeasing gesture toward populist elements demonstrates a critical want in understanding and foresight by some politicians in terms of the origins of the international human rights framework. 

The introduction of a distinctly British Bill of Rights is looking, more than ever, to be the most likely course its principal flag-bearer, Dominic Raab, will advance in the coming months.  The latest comprehensive Government consultation on such the Bill of Rights policy is firmly signalling such an intent. Tellingly, regardless of the consultation’s substantive outcome and responses, the official statement declares that the Government will plough full steam ahead ‘with legislative proposals to Parliament to revise and replace the Human Rights Act with a Bill of Rights.’

Any realigning of the HRA will not be legally or diplomatically straightforward, notwithstanding the aforementioned international legal implications.  Indeed the Government-commissioned Independent Review of the Human Rights Act expressly advised, in so many words, that a hasty endeavour to fix the unbroken would be an unwise move. Proportionality and balance, forever prominent within human rights practice, must guide the Government’s renewed expedition on the slippery slope of HRA repeal. Pursuit of such a course would be “step into a dark place for this country and the world.”

Published by The Gown Queen's University Belfast

The Gown has provided respected, quality and independent student journalism from Queen's University, Belfast since its 1955 foundation, by Dr. Richard Herman. Having had an illustrious line of journalists and writers for almost 70 years, that proud history is extremely important to us. The Gown is consistent in its quest to seek and develop the talents of aspiring student writers.

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