A Guest Blog – Constitutional Hurdles: Proposals Concerning the European Court of Human Rights and the Human Rights Act

From LCHR member Scott Forman

Reports have surfaced that Theresa May plans to propose that Britain leave the European Convention on Human Rights (ECHR) in her 2020 Manifesto. The Prime Minister has been a vocal critic of the Convention and its enforcement mechanism, the European Court of Human Rights, based in Strasbourg (ECtHR). This proposal is in addition to the already well established Conservative promise to repeal the Human Rights Act (HRA). If successful, these measures would transform Britain’s constitutional landscape. However, such significant change could not be brought about without surpassing Britain’s unique constitutional hurdles, many of which could frustrate the Prime Minister’s route to constitutional reform.

ECHR

 The ECHR was created as a post-war attempt to unify Europe and prevent the atrocities of the Second World War from ever occurring again. Its inception on 3rd September 1953 was a product of significant British influence and aimed to herald a new era in which human rights would preserve and maintain peace. The ECHR was created by the Council of Europe and Britain was among the first eight states to ratify the Convention in 1953. The formation of the Convention’s supporting court occurred in 1959 and it is based in Strasbourg. The court consists of a judge from each member state to the Convention, currently standing at 47.

Britain’s withdrawal from the ECHR would be far from straightforward. The ECHR is an international treaty therefore the current government may argue that withdrawal from the Convention could occur through exercise of an act of royal prerogative by the Executive. However, as was argued in relation to triggering Article 50 to leave the European Union, it could be suggested that Britain’s ratification to the ECHR is of ‘constitutional character’, therefore only amendable through parliamentary approval. If so, navigating withdrawal from the ECHR through parliament could be problematic. The measure would also entail Britain having to leave the Council of Europe as adherence to the Strasbourg Court is a condition of membership. Such a move would rightly be fiercely contested by many MPs.

HRA

 The Human Rights Act is a product of the legacy of the ECHR. It was enacted in 1998 by a Labour government, and became effective in 2000. The main purpose of the Act upon introduction was to ‘bring rights home’. Under the legislation it was proposed that British people should be able to protect their rights in British courts. The provisions of the Act sought to prevent human rights disputes being taken all the way to the Strasbourg court by resolving any breaches of the Convention before the domestic judiciary.

The main constitutional conundrums concerning proposals to repeal the HRA stem from Britain’s carefully constructed devolution settlement. Repealing the HRA would have a significant impact on the devolved nations. This may jeopardise the stability within and between the nations that is essential for a unified Britain.

 Scotland

 The incumbent Scottish Government has made its position clear that they oppose repeal of the HRA. This opposition could pose a significant constitutional hurdle. Nicola Sturgeon, Scotland’s current First Minister, has suggested that any attempt to repeal the HRA would require the legislative consent of Scottish Parliament. This assertion is based on the constitutional arrangement known as the Sewel Convention which stipulates that Parliament shouldn’t legislate on devolved matters without the express consent of Scottish Parliament. Although only a convention, therefore not binding in law, repealing the HRA bypassing the consent of the Scottish Parliament would be unconstitutional and disastrous for the harmony of the union of nations. Imposition of major constitutional change would undoubtedly reinvigorate nationalist sentiment and strengthen cries for Scottish independence.

Northern Ireland

Repeal of the HRA would also have huge ramifications for the Good Friday Agreement (GFA) with Northern Ireland. The GFA is an International Treaty to which both the UK and Northern Ireland are bound. In signing the GFA both parties agreed to the ECHR as it stands within International Law and any deviation from this agreement including repeal of the HRA, would constitute a breach of the GFA. The GFA was subject of a referendum both in Northern Ireland and the Republic of Ireland therefore a move away from one of its central commitments would require the consent of both nations. The HRA incorporates the rights enshrined in the Convention into domestic law and is essential to maintaining stability in Northern Ireland. The Act’s repeal could set back years of progress within the previously volatile region.

Conclusion 

Mrs May faces considerable constitutional hurdles should she wish to withdraw from the ECHR and repeal the HRA. The seismic constitutional changes that would occur threaten to destabilise Britain’s carefully balanced devolution settlement. Adequate respect for the autonomy of the nations within the union requires that they are consulted and consent to such measures. These proposals should be strongly opposed. The ECHR and HRA are essential safeguards against human rights infringements and form part of the fabric of Britain’s complex constitutional construction. Their removal or replacement could spark a chain of events that results in irreparable damage to British unity. Mrs May should tread more carefully than her predecessor Mr Cameron in this regard, otherwise leaving the European Union will not be the only Conservative legacy.