The ECHR- by Flickr user 'Outlandos [ym]' Creative Commons license:
The ECHR- by Flickr user ‘Outlandos [ym]’ Creative Commons license:
Let’s be honest: many of us dislike the actions taken by the current Conservative government. However, nothing is more stomach churning than the virulently defamatory claims about the European Convention on Human rights (ECHR) made by certain members of the Conservative party and indeed often repeated by mainstream media outlets. Of course, the culmination of these claims is the Tory’s desire to repeal the Human Rights Act (HRA) and replace it with a ‘British Bill of Rights’.

In case it wasn’t immediately obvious, I could not be more strongly opposed to the repeal of the HRA.  I was strongly opposed to a British exit from the EU; I along with many other members of the green and progressive movement spent huge amounts of time campaigning for a vote to remain. To be clear, preventing the repeal of the HRA is more important, vastly more important. This is a call to arms, not just for those of us who sought a remain vote, but indeed to any who believe in the value and importance of human life. We must stand up now, to oppose attempts to denigrate our human rights; opposition must not only come from progressive voices in parliament, we also need direct action to protect our HRA.

Of course, the conservatives offer reasons for why they wish to repeal the HRA, the fullest outlining of these reasons is offered in their 2015 election document ‘Protecting Human Rights in the UK: The Conservatives Proposals For Changing Britain’s Human Rights Laws’. The key rational laid down in this document for the proposed changes is fourfold.

Firstly, they argue that ‘The European Court of Human Rights has developed mission Creep’. In saying this, they mean to allege that the court has taken the convention beyond its intended limit. Their claim that the ECtHR has developed mission creep is laughable; it is a patent and I would argue deliberate misunderstanding of the nature of human rights law.

The ECHR was drafted in an intentionally vague manner; the same can be said of almost all international human rights documents. The reason is so that it is able to take account of the fact that society and with it our conceptions of rights develop. For example, Article 14 of the ECHR protects individuals from discrimination in respect of ‘sex, race, colour, language, religion, political or any other opinion, national or social origin, association with a national minority, property, birth or other status.’ Notice any eyebrow raising exceptions? There is no mention of sexual orientation, and yet, sexual orientation is of course now protected under the convention. Why? Well, because the court treats the convention as a living instrument. The court takes account of the fact that, over time, our ideas of what is a right develop. This isn’t ‘mission creep’, or the court expanding its purpose. Rather it is the court doing exactly what it is supposed to do, acknowledging the ever-shifting conceptions of what rights are.

Shifts of this nature happen in all human rights or civil rights documents. For example, if we step across the Atlantic, we can look at the equal protection clause of the Constitution of the United States of America. The equal protection clause comes under the fourteenth amendment to the United States Constitution. The equal protection clause provides that no state shall deny anyone within its jurisdiction ‘The equal protection of the laws’.  Prior to 1954 and the now infamous case of Brown v Board of Education, the law reflected that racial segregation was considered to satisfy the need for equal protection in light of the Civil Rights act 1866. Indeed, the case of Plessy V Ferguson in 1896 had affirmed that racial segregation in schools did not breach the equal protection clause. Following Brown v Board of Education, separate but equal and the segregation this legitimated has now been deemed unconstitutional. The point I am attempting to illustrate with this little foray across the pond is that this type of living interpretation is a feature of all rights based law. The European Court of Human Rights (hereafter ECtHR) have not ‘developed mission creep’ they are just acting as they were originally intended to act, indeed they are acting as any court deciding on human rights issues acts. Conceptions of human rights change over time: it is the court’s job to make decisions which reflect this.

The second claim, namely that the HRA undermines the role of British Courts, is equally as fallacious as the first. Section 2 of the HRA 1998 contains a requirement for the court to consider ECtHR jurisprudence. To be exact, section 2(1) a of the HRA 1998 requires that ‘a court or tribunal determining a question which has arisen in connection with a convention right must take into account any- (a) judgement, decision, declaration, or advisory opinion of the European court of Human Rights’. The operative term in this is ‘take into account’. To be absolutely clear here, ECtHR decisions do NOT bind UK courts. In no way, shape, or form does the requirement to take into account the decisions of the ECtHR undermine the powers of the UK court, it merely ensures they are considering all the relevant information when they deliver their decisions. The reason for requiring them to take into account the decisions of the ECtHR are fairly obvious, in requiring the court to take account of the decisions of the ECtHR the act ensures that UK courts maintain interpretations of convention rights which are consistent with the standards applied in other European jurisdictions. This is not undermining the powers of the supreme court at all; the UK courts retain the final say on all questions which come before them and British judges remain at full liberty to make their own decision on convention issues. In fact, in its present form, the HRA makes it more likely that the last hearing a case receives will be within a UK court.

Thirdly, they argue that ‘Labour’s Human Rights Act undermines the sovereignty of parliament’. Their implication in saying this is fairly clear: they are claiming that section 3 (1) of the act, with its obligation for courts to read the law, as far as is possible, in conjunction with convention rights somehow undermines parliamentary sovereignty.  This third claim is no better than the first two. In fact, the claim that the HRA ‘undermines the sovereignty of the UK parliament’ is probably the most fundamentally misguided reason advanced in this document. Section 3(1) of the HRA requires courts to read the law in conjunction with convention rights as far as is possible.

An example of a scenario where this happened is the case of Ghidan v Godin-Mendoza. In this case a man seeking to succeed to a statutory tenancy from his deceased same-sex partner would have been prohibited under the Rent Act 1977; however, the court used article 3(1) of the HRA to read the Rent Act in conjunction with article 14 in relation to article 8 of the ECHR. In doing this they were able to expand the scope of the rent act to allow same-sex partners to succeed to a statutory tenancy. Let us be clear here, this is NOT an encroachment on parliamentary sovereignty. Parliament can still make or unmake any law, all this section requires is that where a provision is unclear the court interpret it consistently with convention rights. Parliament can still, should they wish, make a law that is very obviously contrary to the ECHR. To borrow Leslie Stephen’s quite famous example, parliament could still pass a Blue Eyed Babies Act, an act that could provide for the destruction of all children born with blue eyes. Obviously, this would be politically impossible, and rightly so; nonetheless, there is nothing the court can do to read this consistently with our human rights obligations.

In short, even a law this repellent could be a valid law in the UK today. Considering this, the claim that the HRA is a constraint on parliamentary sovereignty is simply laughable; all the HRA provides are instructions for courts in how they should interpret the law when it is not clear. As you might expect, those instructions request that they come down on the correct side of our international legal obligations. It is worth adding that those international legal obligations were themselves brought into UK law through the exercise of parliamentary sovereignty.

Finally, we have the claim that the HRA goes far beyond our obligations under the convention. Shockingly, this claim is accurate. There is not a requirement for us to provide for the possibility of bringing claims under the convention in our local courts; however, the fact that we do allow these claims is good for both the people and the state. If we did not allow claims to be brought within our domestic courts not only would we face vastly higher costs per case, for both state and individual, an average of £30,000 for each and every claimant (imagine the potential cost of that to our economy, assuming every existing convention based claim reached the grand chamber of the ECtHR), we would also see our courts lose the final say on human rights issues in this country. Yes, you read that right, this plan would see an increase in the number of cases which went from our supreme court to Strasbourg. Now considering the key motivation to the repeal seems to lie in some misguided nationalistic notion of bringing British rights back under British control, surely the fact that this would, in fact, see more decisions being made in Strasbourg should be a compelling reason not to make this change?

To conclude, none of the reasons the Conservatives provide for making this change bear up to reality; it is imperative that those of use with a voice make it heard. this change cannot be allowed to happen. The reasons provided in support of the repeal have been thoroughly debunked. The reasons to oppose the repeal are around us every day; every person you pass in the streets is a reason to stand up and fight for human rights. If you think that human rights do not matter to you, then take a second to put yourself in the shoes of another: imagine it is you being discriminated against because of your sexual orientation or the colour of your skin; imagine it is you being subject to arbitrary imprisonment. Human rights are not a panacea, they do not cure all social ills, but they do lay down a base, a level of treatment that each and every human being can lay claim to.