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Human rights will be a major issue in the forthcoming general election. The Labour party has just begun a political campaign, albeit one with remarkably ill-defined aims ("a Labour vision for human rights", "ensure they remain at the heart of Labour's policy and practice", and so on). The Conservatives recently sacked their well-respected attorney general, apparently because Dominic Grieve advised against the policy they are planning to announce at their party conference in October. And one of their justice ministers has said that Britain "should think of leaving the [human rights] convention if we can't get a satisfactory arrangement" with the court that enforces it.
Some people find the issues confusing. So what follows is a simplified cut-out-and-keep guide. I have tried to make it objective, although I am sure readers will not hesitate to correct me if it is not.
What's the difference between the human rights convention and the Human Rights Act?
The European convention on human rights is a treaty: an international agreement. It was ratified by the United Kingdom in 1951 and entered into force in 1953. It has been signed by all 47 member states of the Council of Europe. The Human Rights Act was passed by the British parliament in 1998 and entered into force two years later. It includes almost all the provisions, or "articles", in the convention, allowing judges to apply them in the courts of United Kingdom.
Why is there an act as well as a convention?
To begin with, the convention was not much use to individuals who wanted to complain that governments had not respected their human rights. Council of Europe member states did not agree to set up a human rights court until 1959. The British government waited until 1966 before allowing individuals to bring cases against itself in the new court. And courts in the UK could not apply the convention themselves until the Human Rights Act took effect in 2000. Until then, people seeking to enforce their human rights had to complain to the court in Strasbourg, a process that lasted years.
What does the Human Rights Act say?
There are two important provisions. The first says that other acts of parliament must be read and given effect in a way that is compatible with the human rights convention, "so far as it is possible to do so". If it is not possible for senior judges to "read down" other legislation in this way, then all that the courts can do is to say so. The other important provision says that a UK court deciding a human rights case "must take into account" any relevant decision of the human rights court.
What happens if a court in the UK finds that other legislation is not compatible with the convention?
It is for parliament to decide whether to change the law. Special fast-track procedures are available. That is because it was thought that ministers would want to reform an incompatible law before the claimant could go to Strasbourg and defeat the government.
What does "take into account" mean?
Many judges have expressed many opinions. Clearly, the statute does not make decisions of the human rights court binding on our own judges. But neither are they free to ignore Strasbourg decisions. Otherwise, a disappointed claimant would simply take a case to the human rights court and, again, the government would probably be defeated. Some people think that judges in Britain are too willing to go along with a court that is constantly reinterpreting and developing the convention as a "living instrument". But rewording the phrase "take into account" might not help a judge decide whether or not to follow a particular Strasbourg decision.
What would be the effect of repealing the Human Rights Act?
It depends whether parliament puts anything in its place. If there is no replacement, then we are back to where we were before October 2000. People would be able to enforce their human rights, but they would have to go to Strasbourg to do so. That is the theory, anyway. In practice, I think that UK judges who have spent their judicial careers enforcing human rights would find ways of continuing to do so, perhaps by ruling that convention rights such as privacy have now become part of the common law.
And what would happen if parliament enacted a "British" bill of rights?
If it contains rights that are based closely on the convention, as currently interpreted by the human rights court, then we would be in the same position as we now are. But the more convention rights that are missing from the new act, the more cases would go to the Strasbourg and the more defeats the UK government could expect to suffer.
What effect do those defeats have?
Article 46 of the human rights convention says that the states "undertake to abide by the final judgment of the court in any case to which they are parties". That means their governments must seek a change in the law.
And what if they do not?
Enforcement is the responsibility of the Council of Europe's committee of ministers. That is made up of the member states, which operate through their ambassadors in Strasbourg. Ever since the human rights court confirmed in 2005 that the UK's blanket ban on voting by convicted prisoners was a breach of their human rights, the committee has monitored the UK's non-compliance with that ruling. In March, the committee again urged the government to introduce legislation.
What if Britain simply refuses to abide by the court's judgment on prisoner votes?
There has been a tacit understanding for some years that the committee would not make much of a fuss before the next general election. If the next government fails to take action, the UK could, in theory, be forced out of the Council of Europe. But the UK has always implemented the court's decisions and nobody wants to provoke a crisis.
What options are open to a government that does not want to abide by a decision of the court?
Article 58 of the convention allows a member state to "denounce" the treaty — which means to pull out of it. Six months' notice is required and denunciation does not release a country from its existing obligations. But it would be difficult to enforce those obligations once a state had left.
What would the political consequences be?
There can be little doubt that UK would have to leave the Council of Europe if it pulls out of the convention. Although there is much more to the Council of Europe than human rights, no country can join the 47-member body without first agreeing to be bound by the human rights convention.
But that's not the same as leaving the European Union?
The two bodies are separate, though often confused and are becoming more closely connected. No country can join the EU without first joining the Council of Europe. But whether the UK could stay in the EU after leaving the Council of Europe would presumably be a matter for all 28 EU member states to decide.
Are there other options for the UK short of pulling out?
People have talked about renegotiating the UK's membership. But it seems unlikely that the Council of Europe would give special privileges to one particular state. Other members might think it better for the Council of Europe to lose a country that values human rights rather than to dilute obligations that are respected by countries which do not.
Is there a compromise?
According to Lord Faulks, the justice minister, Conservatives want the court to be "far less intrusive in areas where we have a clear view expressed by parliament as our sovereign body". And that is just what the court clearly tried to be earlier this month when it decided that prisoners who had been denied their right to vote would not be awarded compensation or even their legal costs, thus deterring further applications.
Is that enough for the Conservatives?
Apparently not. They argue that the human rights court should never have ruled on claims such as prisoner voting. These issues, they say, should be a matter for parliament and the UK supreme court. Those bodies should be sovereign.
Aren't they already sovereign?
They are in the sense that I explained earlier: the UK courts need only take Strasbourg rulings into account; and they cannot use the Human Rights Act to overrule incompatible primary legislation. But they are not sovereign for so long as the UK is committed under international law to abide by judgments of the human rights court.
What about a democratic override?
In the UK — though not in some other democracies, such as the United States — the legislature always has the last word. Parliament can overrule — or override — decisions taken by any court. By contrast, the human rights convention gives the court and the Council of Europe states the last word. Lord Judge, the former lord chief justice, is one of many distinguished lawyers who argue that the human rights court has too much power.
So how would the Conservatives make parliament supreme?
According to Dominic Grieve, "the proposal that seems to have been floating about is that a Conservative government should enact primary legislation to state that, while Britain would still adhere to the European convention, no judgment of the European court of human rights could be implemented without parliament having approved its implementation in some way".
Would that work?
As a matter of domestic law, it would be fine. But an act of parliament cannot override the UK's treaty obligations. Non-implementation of a ruling by the human rights court would continue to be a breach of international law while we remained part of the convention.
Could the UK live with that breach?
It might damage Britain's international reputation and moral authority. Grieve says the ministerial code would have to be amended so that officials could draft legislation that would otherwise breach the UK's international legal obligations.
So it would be better to pull out of the convention?
It would be more honest; though it would do political damage to the UK and the convention itself.
But at least it would give the UK control of its own human rights laws?
No. We would remain signed up to by the EU's charter of fundamental rights. This can be used to trump other acts of parliament when the courts are interpreting legislation required by EU law. If the UK pulls out of the human rights convention, Grieve fears that the EU court of justice in Luxembourg — nothing to do with the human rights court in Strasbourg — would expand its role, requiring the UK to comply with human rights judgments.
So we would have to leave the EU too?
Yes. If we want to be sure we can make our own decisions on human rights in future without any risk that they will be overturned by a foreign court, the way forward is clear: we shall have to leave the Council of Europe — and the European Union.
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