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HRA

It is no secret that the Conservative Party has always been critical of the Human Rights Act 1998 (HRA), which incorporated the European Convention on Human Rights (ECHR) into domestic law. Many of its prominent members have spoken negatively of it and, instead, advocate a British Bill of Rights. In the Party’s 2010 election manifesto, it proposed to “replace the Human Rights Act with a UK Bill of Rights”. Likewise, in its 2015 manifesto the Party made the same promise but added that this proposal “will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK”. Although Michael Gove, the Secretary or Justice, announced before the House of Lords Constitution Committee that the awaited Bill of Rights consultation have been postponed causing a delay in the government’s plan to scrap the HRA again, the question of whether a Bill of Rights is right for the UK remains controversial. With public outcries for the HRA’s repeal demonstrated by the Policy Exchange/YouGov statistic of 75% of Britons thinking the HRA are a “charter for criminals”, there seems to be strong support for this proposal. However, is this figure a product of the media and many politicians’ widespread apathy towards the Strasbourg court’s controversial rulings, especially in foreign suspect cases, or does it show genuine need for Britain to build a home-grown Bill of Rights?

In a House of Commons debate, Dominic Raab, the Minister for Human Rights, shed light on some of the perceived issues of the HRA which a new Bill of Rights will seek to solve, which Mark Elliott identified, including:

  • Granting “greater authority for the Supreme Court” so less will be “subordinated” to Strasbourg;
  • Stopping rights from being “distorted by judicial legislation”;
  • Stopping rights from “being abused by serious and serial criminals”;
  • And ensuring “sensible application and proper respect” for the “democratic role” of Parliament.

In answering questions from other MPs, Raab’s responses are vague in analysis. However, it is apparent that the Party’s concerns remain unchanged and seemingly intertwined.

First, there is concern towards the supposed “abuse” of rights by claimants who are seen as undeserving, namely foreign suspects who attempt to prevent deportation using human-rights laws after their prison release. As seen in the reactions to the Strasbourg court’s decision against the deportation of the suspected terrorist Abu Qatada, there is a great will for there to be a Bill of Rights with many antagonising the HRA. However, the idea that a human-rights claimant is ‘underserving’ does not rest well with the conventional notion of human rights. The ECHR was written after the horrors of the Second World War when it was believed that some fundamental rights, such as the right to be protected against inhuman and degrading treatment, should be enshrined with no get-out clause or exceptions. Some rights are fundamental in ensuring fair treatment and protection for all to prevent discrimination against particular groups such as foreign criminals from arbitrary power and populist opinions. Therefore, some human rights should be above the whims of parliament to protect minority interests. Introducing a Bill of Rights imply that, potentially, rights of these individuals will be compromised as the HRA is viewed as firearm for ‘undeserving’ claimants. With the notion that a human-rights claimant can be ‘undeserving’ and thus showing a lack of equal and fair treatment, just because the idea of a Bill of Rights is politically right, it does not mean it is morally right.

Second, the Party is also concerned over a judicial “mission creep”; the court is said to have manipulated the interpretation of a rational set of human-rights laws to the ‘undeserving’ claimant’s advantage. This contention illustrates the tension between the courts and politicians and their institutional role regarding the separation of powers; the crux of the issue is the argument that unelected judges should not apply human-rights law to contentious matters of public interest, such as the balance between the threat of deportation of a suspected terrorist against the potential danger of their stay to the public. The compromise between the public’s interest of being protected and the foreign suspect’s interest in pursuing a family life in the UK is therefore a domestic issue requiring a political value judgement. The judiciary, especially a foreign one, cannot claim democratic mandate to make judgements on cases this heavily involving the public. However, which other institution can we rely on to make such decisions? If anything, contentious cases require neutrality to a larger extent to avoid tyranny of the majority and to reach a fair balance. Politicisation of the decision risks the scale to be tipped heavily in favour of the frantic public who are highly responsive to the media’s exaggerated portrayal.

Lastly, Raab revealed a concern previously expressed by former Justice Secretary Chris Grayling, who advocated for “our Supreme Court to be supreme again”, that there should be an expansion in the UK Supreme Court’s authority in the expense of the Strasbourg court. This suggests that the concern is not with human-rights decisions by judges, but by specifically European judges. However, the argument lacks strength as it is unclear how and if the outcome would be different since all judges are supposedly politically neutral. Additionally, refusal to implement the Strasbourg court’s judgement may impact the obedience of other Council of Europe members. Recently, a bill in Russia was supported allowing Moscow to ignore judgements of international rights courts, foreshadowing the country’s rejection of the ECHR.

So, is the Bill of Rights right? Politically, it is obvious that it will please many voters. However, one cannot help but be sceptical about why the Conservative Party endorse the proposal so badly and what human-rights law will look like if they were to shape it to their liking. This is without even considering the international impact and the obstacles of backbench MPs, the Lords and the devolved assemblies.

Carmen Huang (Law)

IndentureIt can be difficult to find ideology in the dry world of private law. Undergraduates are often attracted to the more controversial parts of the law – for instance, public law – where ideology is overt. The only real difficulty is, however, the need to look a little bit harder.

The case of M&S v BNP Paribas concerned the exceedingly dry topic of the implication of terms into a contract. This case in effect overturned the previous leading case, Belize Telecom. It was a commonly-held view that the effect of Belize Telecom was that the court could imply terms that were not expressly put in a contract simply with reference to the process of construing the parties’ intentions. The law was not constrained by the restrictive ‘officious bystander’ and ‘business efficacy’ tests. It was a case of determining what was agreed. But this was said to be ‘wrong in law’ in BNP Paribas.

What possible ideological change could this have wrought? I suggest that it reflects acceptance by the senior judiciary, contrary to previous trends, that the private law cannot be made wholly subordinate to what persons and institutions want it to be without reference to external norms and community standards – what Alastair Hudson calls ‘autopoiesis’. Instead, the courts are recognising that private law, to some extent, has to be subordinate to external norms and standards. In short, private law cannot be privatised.

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Due to Baroness Cox’s illness, the public lecture has been cancelled.

Due to illness, Baroness Cox is unable to attend and speak at the launch event scheduled for Thursday 21st April. The public lecture is therefore cancelled.

In its place we will have a short, informal presentation in the common room. We will announce the winner of the blog competition and present copies of Volume 4 to our authors and editors.

There will be drinks and nibbles. All those with an interest in the North East Law Review, no matter how minor, are cordially invited.

The presentation will be at the earlier time of 6pm on Thursday 21st April. We look forward to welcoming you there.

handcuffsLast week, an appeal by a French prisoner to the EU’s top court against his voting ban revived the debate about prisoner voting rights in the UK. Colin Murray writes that although the appeal was unsuccessful, the ruling did not foreclose the possibility of future successful challenges to bans on prisoner voting. He suggests that it is highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate to their crime in the run up to the 2019 European Parliament elections, indicating the issue will continue to be a thorn in the Conservative government’s side.

It has been eleven years since the Fourth Section of the European Court of Human Rights issued the Hirst v UK judgement. In that time, the issue of prisoner voting rights has become the touchstone for the fraught relationship between the UK and the system of rights protection under the European Convention on Human Rights (ECHR). Whilst other crises (such as Abu Qatada’s deportation to Jordan and the reviewability of whole-life sentences) have been resolved or defused, the Strasbourg Court’s demand that the UK modify its blanket ban on convicted prisoners voting has remained an intractable source of conflict, inflaming the Conservative’s manifesto pledge to replace the Human Rights Act with a British Bill of Rights.

For all of the political fulmination upon prisoner voting in the run up to the 2015 General Election, the UK’s showdown with Strasbourg has of late settled into an uncomfortable stalemate. The UK is in continuing breach of its Article 3, Protocol 1 obligations and as such is subject to regular censure before Committee of Ministers’ meetings for its failure to execute the prisoner voting judgments. At the same time, however, the Strasbourg Court has made it clear, in Scoppola v Italy, that minimal reform of the law to extend the vote to short-sentence prisoners would satisfy the UK’s obligations, and in Firth v UK has denied compensation to UK prisoners for the breach of their rights.

The Court’s first olive branch has been snubbed (with successive Governments failing to respond to a Parliamentary Committee’s recommendation, almost two years ago, that short-sentence prisoners should be enfranchised). But the UK Government’s refusal to meet the Court half way is unsurprising, given the Court’s refusal to press the issue. Strasbourg’s denial of compensation ensures that David Cameron does not have to justify make embarrassing payments to prisoners, effectively downgrading the clash from crisis to a running sore point.

The détente between Strasbourg and the UK makes last week’s judgement of the EU’s top court, the Court of Justice of the European Union (CJEU), even more intriguing. Serendipitously timed for release to coincide with David Cameron’s speech to the Conservative Party Conference (and the ten-year anniversary of the Strasbourg Court’s judgement in Hirst), the CJEU’s judgement in Delvigne v Commune de Lesparre-Médoc caused such consternation that Downing Street was obliged to deny that the UK would change its ban on prisoners voting even before the decision was known. The binding effect of CJEU judgments in domestic law means that its intervention on the issue would be much harder for the UK Government to side-step (at least with regard to European Parliament and local elections) than Strasbourg’s rulings.

In the end, Cameron’s speech was not upstaged, with the Court accepting that EU law was not breached in the ongoing denial of the vote to a convicted murderer in France over a decade on from the end of his incarceration. But if the judgment isn’t exactly headline-grabbing, is Joshua Rozenberg nonetheless right to argue that it means that the UK Government should act now on prisoner voting?

In many respects, the Delvigne reference was easy for the CJEU to resolve. The reference by the French Court was poorly constructed, with the Court being supplied with much less background information to the question of EU law its opinion was being sought on than it would usually expect (opening the possibility of ruling the reference inadmissible). The claimant had not attempted to follow the process which existed in French law to lift his disenfranchisement. Moreover, as a convicted murderer, France could make arguments about the seriousness of his offence warranting the additional punishment of disenfranchisement. The Court accepted that in some cases disenfranchisement was compatible with the EU’s Charter of Fundamental rights. Two years earlier, in Chester and McGeoch, the UK Supreme Court had reached the same conclusion on the limitations of the right to vote under EU Law:

I reject the submission that the Supreme Court could or should simply disapply the whole of the legislative prohibition on prisoner voting, in relation to European Parliamentary and municipal elections, thereby making all convicted prisoners eligible to vote pending fresh legislation found to conform with European Union law … under [EU law] a ban on eligibility will be justified in respect of a very significant number of convicted prisoners.  (Lord Mance, para.73)

And yet, in spite of these unpromising aspects of this case, the CJEU did not foreclose the possibility of future successful challenges to prisoner disenfranchisement using the Charter. The Court rejected the argument of the UK Government, intervening, that EU law was not engaged by criminal law sanctions or was not a live issue because the case involved a French national challenging French Law, and therefore involved no “cross-border” element. The Court affirmed that Article 39(2) of the Charter, by which “Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot”, did not need any cross-border element to generate a fundamental right enjoyed by EU citizens.

This means that in certain cases, claims for votes by prisoners will engage a Charter right. In the run up to the European Parliament elections in 2019 it will be highly likely that some UK prisoners serving short sentences will claim that their disenfranchisement is disproportionate, given that the ban on voting applies automatically irrespective of the level of criminality which triggered imprisonment (which can be much lower than the serious criminality at issue in the Delvigne case) and there is no avenue to challenge the ban (as there was in the Delvigne case). These factors were determinate in the CJEU finding that French law involved a proportionate restriction of the right to vote. Such claims will be hard for the UK courts to dismiss out of hand, and could at the very least trigger a reference to the CJEU for consideration (as they previously refused to do in Chester and McGeoch, because of the serious criminality of the claimants in that case).

“Victories” like this one are therefore hard for the UK Government to crow over, even if they do help to kick the issue into the long grass for a few more years. It may ultimately be better for the UK Government to respond when it is not being forced to by pressure from a European Court (not that successive Governments have not revelled in the image of “standing up to Europe”). But perhaps the most interesting aspect of the case is the degree to which the CJEU staunchly refused to engage with any of the ECHR jurisprudence on prisoner voting. The Advocate General’s Opinion, released this summer, reached broadly the same conclusion as the CJEU (that EU law was engaged, but that the ban was proportionate), but did so based on extensive reliance upon Strasbourg jurisprudence.

The CJEU, however, continues to fear that it might lose out to Strasbourg as the ultimate arbiter where EU law engages human rights questions. Last year, it refused to allow the EU to accede to the ECHR and in Delvigne, as with other recent cases, it has shunned any mention of Strasbourg in its decisions out of concern over letting Strasbourg’s influence grow by the back door. Prisoner voting rights are becoming a central feature of yet another intractable struggle over Europe’s institutional architecture for protecting human rights.

Colin Murray is Senior Lecturer in Law at the University of Newcastle

HRAThe Conservative Party’s concept of a “British Bill of Rights” has long rankled in Northern Ireland. Seemingly in the interests of alliteration such fundamental proposals were titled in a way that carried with it thinly veiled disregard for sensibilities in what is supposedly a constituent part of the UK. Not a UK Bill of Rights, but one for Britain. British rights, not Irish rights. Beyond putting noses out of joint, it also spoke to a lack of consideration of the legal framework put in place by the Belfast/Good Friday Agreement. As the Coalition Government’s Bill of Rights Commission had warned (p.15):

[R]espondents, in particular in Northern Ireland … were also concerned that any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK, particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland

Nonetheless, with last week’s General Election victory the Conservative Party stands on the brink of being able to fulfil its manifesto promise:

The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.

The latest reports suggest a draft Bill is near ready for release. The appointment of Michael Gove as Minister for Justice suggests that David Cameron is positioning a minister who certainly holds himself out as a public intellectual to lead the debate over this reform. But any thought that Gove’s appointment marks a softening of the Tory position on the Human Rights Act seems wide of the mark. The most prominent appointment in Gove’s ministerial team is Dominic Raab, a vocal opponent of the HRA and a minister intended to assure the right-wing of the Conservative Party that there will be no back sliding on this issue. And indeed, how could there be? If Cameron is to hold the Tory party together in support of his “renegotiation” of the UK’s EU membership, even if this results in insubstantial concessions over the UK’s position, and subsequent referendum, this faction will have to have blood, and quick.

So, in this context, are the implications of repeal for devolution (particularly in Northern Ireland) a genuine stumbling block or wishful thinking? Will a British Bill of Rights have to alter the Good Friday Agreement? Much will depend on the extent of the Tories’ intentions. Gove’s team could unveil plans which just involved the replacement of the Human Rights Act in England. This would negate any need to negotiate with hostile devolved administrations in Scotland or Wales or tamper with the wiring of the Good Friday Agreement. This would certainly save political capital, allowing the Conservatives to portray themselves as responsive to the will of devolved legislatures and to concentrate on getting the legislation into place as swiftly as possible (as it would constitute the fulfilment of a manifesto pledge the Salisbury Convention would also prevent opponents of the proposals from fighting a delaying action through the House of Lords). Doing so might well not satisfy the Tory Party’s right wing, as the Human Rights Act would continue to operate in three of the UK’s constituent countries, but in terms of addressing the demands of Conservative voters in England (the vast majority of Conservative voters) David Cameron could argue that he had fulfilled his pledge to scrap the Bill.

But a new measure which applies only in England doesn’t make for much of a British Bill of Rights. So assuming a proposal is introduced to Westminster with the intention that it should apply throughout the UK, what might happen next? The first difficulty that the UK Government would encounter is that human rights are a devolved competence. The Welsh Assembly Government, for example, has gone some way towards incorporating the UN Convention on the Rights of the Child into Welsh law, imposing a duty upon Welsh ministers to have due regard to the Convention in their decision-making. This means that the Sewel Convention is triggered, by which the devolved legislatures must consent to Westminster legislation that impacts upon their competences (explained here). Furthermore (as Aileen McHarg explains here) the devolved legislatures in Scotland and Wales would be able to re-enact the Human Rights Act’s terms, and would likely do so to thumb their noses at Westminster. In any event, the ECHR would still be able to apply directly to cover legislation and decisions by Scottish and Welsh ministers because of the terms of the devolution legislation.

Which brings us to Northern Ireland, which, as ever, is even more complicated. Under the Good Friday Agreement the UK Government agreed to the ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’. The Human Rights Act itself is immune from alteration by the Assembly (s.7(1)(b) Northern Ireland Act 1998). As Aoife O’Donoghue and Ben Warwick argue in a timely article in the Northern Ireland Legal Quarterly (see also here), if the Act was repealed then just as with the other devolved legislatures, ‘Northern Ireland could introduce an order that implements the ECHR for Northern Ireland alone’. The problem is that with the main Assembly parties at loggerheads on rights and equality issues (particularly around the Ashers Bakery case) and with the Unionist parties always ambivalent towards human rights, no such legislation would be forthcoming. Repealing the HRA as it applies to Northern Ireland would therefore undermine a key element of the Agreement. Oddly enough the Human Rights Act was merely intended to fulfil the role of placeholder legislation whilst a Northern Ireland Bill of Rights was drafted, but the inability of the Northern Ireland political parties to reach an agreement over such legislation now means that the Human Rights Act will likely soldier on in this corner of the UK at least.

The smart money would therefore appear to be on some form of compromise by which the Human Rights Act is repealed insofar as England is concerned, but remains in place in the remainder of the UK. Martin Howe QC, a key behind-the-scenes figure involved in drafting the Conservatives’ proposals is quoted in The Guardian as saying that ‘you could have significantly different standards of human rights across the UK’. The problems with attempting to impose a British Bill of Rights across the UK, although not insurmountable, would turn a relatively straightforward “win” for the Tories into a protracted fight. Any effort by the Conservatives to go further, and withdraw from the European Convention altogether, would likely descend into a pitched constitutional battle between the UK’s legislatures.

Written by Colin Murray

Colin Murray is a senior lecturer at Newcastle Law School where he specialises in national security law, legal history and public law. Alongside Roger Masterman (Durham University) he is the author of “Exploring Constitutional and Administrative Law”, a textbook on UK public law. You can contact him at colin.murray [at] ncl.co.uk or (+44) 191 2225805