June 18th, 2015
By Leonard Lewis – Research Assistant
The current proposal to repeal the Human Rights Act and introduce a British Bill of Rights was first outlined in October 2014 by the former Lord Chancellor Chris Grayling. The prospect of a Bill of Rights has been long mooted and fiercely debated. However, is such a move is actually necessary? This paper will examine whether a UK Bill of Rights will achieve its intended aims, and whether there is a valid argument that the Human Rights Act is already a Bill of Rights.
Bringing rights home
The Human Rights Act (HRA) incorporates rights from the European Convention of Human Rights, such as the right to life, freedom from torture and the right to a fair trial, into UK law. One of the principal aims of its introduction was to ‘bring rights home’, allowing individuals to bring human rights cases in domestic courts, thereby saving them from the time-consuming and complex process of taking their case directly to the European Court of Human Rights in Strasbourg. The HRA puts a legal duty on all public authorities to act compatibly with the rights provided for by the Convention, and requires laws and policies to be developed or applied in ways that take account of citizens’ human rights. Over the years the Court’s decisions have led governments in many countries, including the UK, to change laws and practices in a wide range of areas, making sure fundamental human rights are protected.
So, why is the HRA now considered not fit for purpose? There are several arguments, such as the belief that UK has a lack of ownership over human rights, and the concern that UK judges are dictated to by Strasbourg to an unreasonable degree. It would also be remiss to ignore the fact that the Court’s image is tainted by an incorrect association with the European Union. The Council of Europe, which oversees the European Convention of Human Rights and the European Court of Human Rights, and the European Union, are two separate organisations.
One of the more emotive arguments for a British Bill of Rights involves its ineffectiveness in tackling the issues of foreign criminals and the ever-present dangers of domestic and international terrorism. A common charge levelled against the HRA is that it is a “criminal’s charter”, and has created a culture of rights without responsibilities. There is certainly a sense that the HRA has hampered the powers of the state to deport foreign nationals and avert terrorist atrocities in the UK, and has consequently undermined the nation’s security interests. Cases such as the protracted withdrawal of Islamist cleric Abu Qatada made widespread headlines and reinforced this perception amongst UK politicians as well as the general public, and increased scrutiny of the human rights system.
Strasbourg jurisprudence and international law
The concept of a British Bill of Rights is not a recent proposition. In a speech by David Cameron at the Centre for Policy Studies in 2006, he stated that he wanted to “entrench” a British bill of rights, which would outline “core values” and responsibilities in British law.
In a critique of the Court, Mr Cameron identified the Court’s decision in Chahal v UK (1996) as the key factor in undermining the UK’s efforts against terrorism. Following on from the seminal judgment in Soering v UK (1989), the Court in Chahal ruled that once it is established that deporting a person would put them at substantial risk of suffering torture or inhuman or degrading treatment contrary to Article 3 of the ECHR, that person could not be deported, and that “the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.”
Seizing on the last statement from the Court, Mr Cameron stated that the judgment in Chahal has ‘made it harder than it otherwise would have been for the government to deport dangerous terrorists’. Indeed, it was similar reasoning that initially prevented Abu Qatada from being deported to Jordan; the Court in that case found that there was a real risk that evidence obtained by torture would be used against Mr Qatada in any criminal proceedings, thereby infringing his Article 6 (ECHR) right to a fair trial.
In a very poignant and emotive statement, Mr Cameron said that this system sends a message to terrorists and would-be terrorists that if they come to Britain, they can be “safe in the knowledge that whatever crime they may have committed in their home country and whatever suspicion there may be that they might be planning a terrorist attack in the UK or elsewhere they won’t be sent back to their country of origin and may not even be detained, because the process is so complicated and time-consuming for the Government.”
This negative sentiment towards human rights is pervasive throughout both sections of the media and the general public, but it is important that advocates of human rights are not dismissive of this. The HRA has been portrayed as having a damaging impact on the UK’s ability to protect its citizens and security interests. Detractors of the HRA believe that cases such as Chahal and Abu Qatada demonstrate that the emphasis is on providing safeguards for foreign criminals and terrorists at the expense of law-abiding citizens.
Impact on a British Bill of rights
The Government’s intention is to make rulings by the European Court of Human Rights unenforceable in Britain, giving parliament the right to veto judgments by the court in Strasbourg. David Cameron stated that it will spell out the fundamental duties and responsibilities of people living in this country both as citizens and foreign nationals, and will ensure that those who pose a national security risk, or have entered illegally, “cannot rely on questionable human rights claims to prevent deportation.”
However, we must consider how much of a difference a Bill of Rights would have in practice.
A Bill of Rights would incorporate into UK legislation all of the rights contained in the original ECHR, and the UK will still be a party to the Convention. Therefore, the UK will still have to adhere to the rights provided for by the ECHR, such as the Article 3 prohibition against torture and ill treatment, which equally applies in deportation cases. Furthermore, the prohibition against torture is not exclusive to the HRA or ECHR. Article 3(1) of the UN Convention Against Torture, to which the UK is a party, states that “No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Therefore, the domestic battle against international terrorism and foreign criminals will not be aided by simply repealing the HRA. If a person is to be deported to a country where there is a real risk that they face torture or ill-treatment, international law states that it is the responsibility of the host state to safeguard that person against such treatment. Cases such as Chahal and Abu Qatada are still likely to arise, but under the label of a British Bill of Rights rather than the HRA.
Could it be argued that the problem is not actually jurisprudence from Strasbourg, or the Human Rights Act, but human rights themselves? Human rights are not designed to be convenient for governments. For the human rights system to work properly, states cannot select which decisions and provisions they want to abide by. We cannot proclaim that human rights apply to everyone equally, and then not apply them to people who have committed wrongdoing. Human rights must be secured for all persons without discrimination. As stated by the civil liberties group, Liberty: “If governments were only prohibited from torturing their own citizens, but permitted to send people to places of torture, there (would) be little distinction between deportation and extraordinary rendition.”
Furthermore, repealing the HRA and reducing human rights to political responsibilities would have a negative impact on the UK’s long standing reputation as an advocate of human rights. It would demonstrate to all other member states in the Council of Europe, including those with questionable human rights records, that the UK government is not fully committed to protecting and enforcing human rights.
The proposition of repealing the HRA has been described as “‘legally illiterate’, incredibly dangerous and inherently narrow minded”, but it is important to recognise how these sentiments have developed in order to have an effective dialogue on the human rights system in the UK.
Admittedly, the Court’s system is imperfect. However, there are strides being made towards fundamental reforms that would benefit all member states of the Council of Europe. For example, the Brighton Declaration amended the European Convention to give even more prominence to the principles of “subsidiarity” and “margin of appreciation”. This means that more deference will be given to national courts in dealing with human rights cases and interpreting the European Convention. The UK should make every effort to use its position as one of the leading figures of the Convention and “maintain the momentum of the Brighton Declaration and to continue to press for fundamental reforms of the European Court of Human Rights”
Public education is also an important factor. As a report by the Joint Committee of Human Rights suggested, “the Government should seek to proactively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true.” By counteracting the negative press towards the HRA through focusing on the numerous positive changes that the HRA has effected in the UK, we may begin to see a semblance of confidence instilled in the public – as well as public officials – towards the human rights system. This may go some way to creating an understanding about what the HRA really achieves, and ultimately demonstrate the HRA is already a British Bill of Rights.
The delicate balance between protecting citizens’ security and infringing their rights undoubtedly poses a significant challenge to governments. However, it is worth remembering that the Convention was drafted in retrospect of the atrocities of World War Two and the drafters of the Convention recognised the importance of democracy and the dangers of limitless state power. Whatever approach the UK takes towards human rights, it is vital that the government ensures that human rights are in fact rights that are universally applied, not political responsibilities that can be gained as well as lost.
 Revealing the real-world benefits of the UK’s Human Rights Act, LSE Human Rights (http://blogs.lse.ac.uk/humanrights/2015/03/25/revealing-the-real-world-benefits-of-the-uks-human-rights-act/) accessed on 10 June 2015
 ‘Balancing freedom and security – a modern British Bill of Rights’, The Guardian, 26 June 2006 (http://www.theguardian.com/politics/2006/jun/26/conservatives.constitution) accessed 4 June 2015
 Chahal v United Kingdom (1997) 23 EHRR 413, paragraph 80
 Op. cit no.2
 Op. cit no.2
 Protecting Human Rights In The UK – The Conservatives’ Proposals for Changing Britain’s Human Rights Laws
(https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf) accessed 1 June 2015
 ‘Legally illiterate’, Liberty, 2 October 2014 (https://www.liberty-human-rights.org.uk/news/blog/legally-illiterate) accessed 1 June 2015
 ‘Lawyer urges release of Tories’ proposals for British bill of rights’ (The Guardian, 11 May 2015) (http://www.theguardian.com/law/2015/may/11/tory-british-bill-of-rights-martin-howe-human-rights-act) accessed 19 May 2015
 ‘Human Rights Act mythbuster’ (https://www.liberty-human-rights.org.uk/human-rights/what-are-human-rights/human-rights-act/human-rights-act-mythbuster) accessed 30 May 2015
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 ‘Q&A: Reforming European Court of Human Rights’, 23 April 2012, BBC (http://www.bbc.co.uk/news/world-europe-17748313) accessed on 30 May 2015
 A UK Bill of Rights? The Choice Before Us, Volume 1, Commission on a Bill of Human Rights, published on 18 December 2012
 ‘A Bill of Rights for the UK?’, Joint Committee on Human Rights, published on 10 August 2008
 ‘PACE President warns against undermining the judicial independence of the European Court of Human Rights’, Parliamentary Assembly, 9 September 2005 (http://www.assembly.coe.int/ASP/Press/StopPressView.asp?ID=1675) accessed on 5 June 2015
 The European Convention on Human Rights, The British Institute of Human Rights (https://www.bihr.org.uk/theconvention) accessed on 10 June 2015