Britain was one of the founding members of the European Convention on Human Rights and when the convention was being drafted. Furthermore, one of the members who had contributed the most significantly to the Convention was former Conservative frontbench MP , Sir David Maxwell Fyfe. The ECHR has grown parallel to our nation since 1948. It was integrated into British law by New Labour by introducing the Human Rights Act (1998) in their attempt to ‘bring rights home’. The Human Rights Act and ECHR have had significant constitutional implications, and it has indeed limited the extent to which Parliament can legislate, limited the executive’s powers and increased the power of the judiciary. But, regardless of that, the significance of the Act and the ECHR is not on the limits it imposes but the rights it enables and the advantages it bears for us as a nation.
Human Rights Act and Access to Justice
The Human Rights Act has had massive implications for access to justice in the UK. Before the policy was enacted, if an individual’s rights under the ECHR were infringed they had to take the long drawn and expensive adjudication process in Strasbourg. The enactment of the HRA has meant that Britons can go to local courts if their rights are infringed, which has saved time and money for many people. Furthermore, under the circumstances that we live in where legal aid is limited and access to justice is already barred by many factors it is incredibly important that access to justice is not limited even further. Britain must not only follow the rule of law, but rather should be seen to be doing so, as this does not only have constitutional importance but also political ones. Being a part of the Convention allows the UK to have the moral grounding to take a stand for rights everywhere and act as a guiding light for human rights.
The ECHR, Human Rights Act and Institutional Accountability
The ECHR does not only establish individual rights and liberties but plays a significant role in ensuring that public bodies and the executive are held to account to protect rights. In a democratic state, it is important to ensure that there is a structure to hold the government to account, as this can be a challenge under a Westminster arrangement where the executive dominates the legislature. The nature of the British arrangement is perhaps best articulated by Lord Hailsham when he said that ‘Britain was in the danger of sinking into an elective dictatorship’ . The HRA acts as a counteracting force to this “dictatorship”. Notably, section 6 of the Act imposes a duty upon the public bodies to act in a way which is compatible with the Convention and blocks the public body from making decisions which may be in breach it. The most prominent case of the use of section 6 of the Human Rights Act was with the Rwanda policy case, where the Home Secretary’s appeal regarding the Rwanda policy was dismissed and the Court of Appeal's original decision was upheld by the Supreme Court. The HRA and ECHR performs a function which is often overlooked in our system, executive accountability, which is one of the pillars of any democracy.
Under the current constitutional arrangement the executive is subjected to checks, but Parliament retains supremacy and it can make or unmake any law that it desires without hindrance from any other institution. The Human Rights Act has acted like a landmark constitutional legislation which has not been subjected to repeal by Parliament because there was always wide-reaching consensus around it. Clearly that has changed in recent years. The Act has empowered the judiciary to check the power of Parliament.
Section 3 of the HRA indicates that legislation must be interpreted by the courts in a way so that it is compatible with the ECHR, while section 4 provides the courts the powers to issue a ‘declaration of incompatibility’ when a government decision is in breach of the ECHR. This triggers section 10, which allows the concerned minister to make a ‘remedial order’ to amend the legislation quickly by bypassing the lengthy amendment process through Parliament. It could be seen as the judiciary imposing their will upon Parliament, but the truth remains far from that; the process of using section 4 and 10 of the HRA has only been used by the courts 40 times since the enactment of the statute. So, even though the HRA does act as a check upon Parliament using the judiciary; the legislature is not always at odds with the ECHR because the UK does indeed have a rights-based political culture, and the attitude that the Human Rights Act and the ECHR is actively hostile to the UK is inaccurate.
Governance Limitations Imposed by the ECHR and UK’s Relationship with Europe
The ECHR does indeed limit the executive from making decisions on certain issues, making governance particularly difficult. Lord Wolfson, the Conservative Shadow Attorney General, in his report to the leader of the Conservative Party reported that if a future Conservative government wanted to make desired policies around immigration, retired veterans, welfare, public order, and the economy they could be at odds with the ECHR. Lord Wolfson, further reports that reform of the ECHR and the Human Rights Act will not be viable . Rather, the UK would need to leave to implement proposed policies, effectively.
Exiting the ECHR and scrapping the Human Rights Act would have implications for the Good Friday Agreement as it requires Northern Ireland and the rest of the UK to have a common human rights standard, a purpose which the ECHR serves currently. Furthermore, the Trade Cooperation Agreement between the EU and the UK has a similar arrangement and exiting the ECHR right now could result in friction between the EU and the UK, and without extremely efficient political management there is a chance of the treaty breaking down altogether. This would without a doubt not only have implications for our overall relationship with the EU but also impact our markets.
Leaving the ECHR and scrapping the Human Rights Act is an idea that has grown in popularity, and certainly there are some merits in that argument. Doing so would give us increased policy independence, and there is a chance that the UK’s executive would have authority to exercise discretion without interference from the judiciary. But one must not overlook the fact that exiting the ECHR has much wider implications for the UK. Leaving the Convention would indeed limit checks imposed upon the executive and parliament, which is vital in any democracy, and it would bear a massive cost for the UK’s foreign relations without skilled political management.
The decision to leave the ECHR is not simply a political decision for ease of policy, its legal and practical implications need to be looked at carefully. And it is not simply about policy, this is about the UK’s relations with the rest of the world. It is about our constitutional arrangement and our rights which it has and continues to protect.
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