Even under Dominic Raab’s “British Bill of Rights”, Strasbourg reigns supreme
Three months is a long time in politics. Until September, it looked like Lord Chancellor Robert Buckland would be in charge of leading the first overhaul of the Human Rights Act (HRA) since its passage in 1998. But then he was kicked out of Cabinet, and this important task now falls on the shoulders of Dominic Raab, who has just published his reform proposals, as well as the report of a review of the functioning of human rights law, led by retired judge Sir Peter Gross.
The Gross Review makes a number of useful recommendations for reforming the HRA. But he still defends the status quo in general. Raab, who as responsible minister is not bound by his recommendations, has chosen to go further. Its legislative reform proposals contain many good ideas, but the package’s minimalist approach raises difficult questions.
As part of the plans announced, the HRA will be replaced by a new Bill of Rights, which will include rights that are currently not covered by the European Convention on Human Rights, as well as changing the way the European Convention is enforced in the UK’s own courts. UK courts will no longer be required to take into account the case law of the European Court of Human Rights. Judges will no longer be able to effectively rewrite legislation to make it compatible with the Convention. And potential plaintiffs in human rights cases would have to prove that they have suffered a “material disadvantage” before filing a complaint.
Strengthening protections for freedom of expression and the right to a jury trial should not be controversial. The same should apply to ending the practice of allowing courts to insert and delete words in acts of Parliament, a practice which gives judges an expanded legislative role for which they lack democratic legitimacy. Indeed, some of the most senior judges in the country have expressed their unease at the idea of possessing such power. And the new clearance stage in human rights actions may filter out some frivolous complaints, although its impact in practice may be limited.
But the proposals are not a panacea for reversing the expansion of the judiciary, either. Releasing UK courts from the obligation to take into account the case law of the European Court may well be a Pyrrhic move, since UK judges have sometimes been willing to go much further in their interpretation of Convention rights than Strasbourg judges. And although the UK Supreme Court has been significantly more restrained in its rulings under Lord Reed’s leadership, relying on the luck of the toss of judicial disposition is hardly a lasting basis on which to build a constitution, as the American example should remind us of this. .
Prior to his dismissal, Robert Buckland announced ambitious plans to review the UK’s constitutional machinery, including the current system of judicial appointments – a legacy of New Labor – as well as the role of the Supreme Court, another back-to-back. -the-. Blairite invention envelope. Although parliamentary time is scarce, Raab would be well advised to move forward on this front simultaneously, in order to ensure the effectiveness of his HRA proposals.
One might question the wisdom of renaming the Human Rights Act a Bill of Rights. The name change could suggest that human rights have been “domesticated”; but national law itself cannot modify the UK’s international legal obligations under the ECHR. As far as international law is concerned, the Strasbourg Court will continue to have the final say on the application of Convention rights in the UK unless the country withdraws from the Convention – a step that Buckland and Raab have so far ruled out. Parliament has already refused to comply with the case law of the Strasbourg Court, in particular with regard to voting by detainees. If the UK is to remain a party to the Convention and defend its own conception of human rights, Parliament may have to do so again in the future, which will create further controversy.
Taken together, this legislative package is a welcome, but limited, first step in overhauling the UK human rights framework. Much will depend on the final form of the proposals, still subject to further public consultation. And it may well be that the government will eventually come to an agreement with Lord Sumption, who recently argued that Britain’s withdrawal from the ECHR is all but inevitable due to the inability to make the kind of change. desired by a significant portion of the British public within the restrictions imposed by the Convention. It is the difficult political choice that the government ultimately cannot avoid.
Yuan Yi Zhu is a Senior Fellow in the Judicial Power Project of Policy Exchange and teaches politics at the University of Oxford.