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.

 

Human rights and workers’ rights after Brexit

brexit pic

On 2nd October 2016, the Prime Minister gave a speech at the Conservative Party Conference in which she set out the timeline for triggering Article 50 and also announced the introduction of the Great Repeal Bill, which will end the application of EU law in the UK.

The Government has produced a white paper for the Great Repeal Bill, which includes so-called ‘Henry VIII’ powers, allowing the Government to alter EU-derived legislation without the normal parliamentary scrutiny. LCHR is therefore concerned that crucial employment and equality rights currently derived from EU law may be restricted or even removed from UK legislation, possibly bypassing the normal legislative process. We have produced this briefing in order to make recommendations for the protection of those rights in the UK.

We are also hosting a Q&A on Human Rights post-Brexit with Keir Starmer MP, Polly Toynbee, Schona Jolly QC and Narmada Thiranagama on April 26th. Please email rachel.finnegan@lchr.org.uk to register for this event. 

Briefing on end-to-end encryption

Following the tragic terrorist attack in Westminster in which the perpetrator is believed to have opened the WhatsApp messaging service just minutes before launching the attack, the home secretary has called for intelligence agencies and police to be given access to end-to-end encrypted messaging services.

The Labour Campaign for Human Rights believes that the home secretary’s plan to persuade internet and social media platforms to voluntarily put back-doors into encrypted services is not practical or proportionate. This briefing covers the reasons why. 

Human rights after Brexit

Wednesday 26th April, 6:00pm

Location: Westminster (Please RSVP for more details)

Q&A on Human Rights post-Brexit with Keir Starmer MP, Polly Toynbee, Schona Jolly and Narmada Thiranagama. Moderated by Stewart Wood.

Contributors:

Keir Starmer MP, Shadow Secretary of State for exiting the European Union
Polly Toynbee, The Guardian
Schona Jolly QC, International law at Cloisters Chambers
Narmada Thiranagama, Unison
Stewart Wood, Labour Peer, former adviser to Gordon Brown and Ed Miliband, and Chair of the United Nations Association – UK.

This is an opportunity to quiz Keir Starmer, who is leading Labour’s response to Brexit, on how the Labour Party will seek to ensure a human rights friendly Brexit deal. Keir and the panel will discuss the anti-immigrant feelings that helped lead to Brexit, how Labour should respond to them in the context of the freedom of movement debate and the status of EU nationals living in the UK, and the threat to employment rights and other human rights currently underwritten by the EU.

You must register to attend this event. Please email rachel.finnegan@lchr.org.uk

Calling time on the Prevent strategy

Ahead of tomorrows debate in Parliament we published the following article on Progress:

The government’s Prevent strategy places a statutory obligation on teachers and educators, without any prior background in counter-terrorism, to identify and report students who express so-called extremist views.

On Friday 24 March, members of parliament will be given the opportunity to support the ‘Counter Terrorism and Security Act 2015 (amendment) bill’ which would exempt teachers, carers and nursery staff working in primary schools and early years education from this statutory requirement.

The Labour Campaign for Human Rights is supporting the bill, sponsored by Conservative MP Lucy Allan, and calling on Labour MPs to add their support in the House on Friday.

Since July 2015 the Prevent duty has required staff at primary schools and nurseries to spot children who are at risk of radicalisation and, if necessary, report them to the government’s anti-radicalisation programme, Channel. The legislation requires staff to ‘have due regard to the need to prevent people from being drawn into terrorism’ and Ofsted look closely at how compliant schools and nurseries are. Teachers have raised concerns that a perceived ‘missed’ referral to Channel would have implications for an Ofsted inspection and may result in a rating of ‘inadequate’ or ‘requires improvement’ from the school’s inspector.

A freedom of information request submitted to the National Police Chief’s Council last year revealed a worrying trend regarding the implications of the statutory duty. The number of referrals rose sharply in the year following the introduction of the duty from 1,681 in 2014 to 3,955 in 2015 and teachers made one third of those referrals. Up to March 2016, 610 children under the age of eight had been reported and there is now an average of one child a week under the age of 10 reported as a result of the Prevent Strategy.

There have been many widely reported cases of very young children being mistakenly referred to Channel and suffering significant distress as a result. The Guardian published a report in February this year of two children aged five and seven who were detained and questioned by the police without parental consent for two hours because of a toy gun. Following a legal claim made by the boys’ parents, Central Bedfordshire council admitted that the teachers had demonstrated ‘a degree of racial stereotyping’ and agreed to pay damages.

Another widely reported incident involved a four year-old who was at risk of being reported for mispronouncing ‘cucumber’, as ‘cooker-bomb’. There was also a case of an eight year-old boy living in east London who was questioned, again without a parent in the room, by social services after wearing a t-shirt which read, ‘I want to be like Abu Bakr al-Siddique’ (Abu Bakr the Truthful). Abu Bakr al-Siddique is believed to be one of the first converts to Islam and not, as teachers had believed, ‘Abu Bakr al-Baghdadi’ the leader of Daesh.

In all of these cases and many others it is clear that a lack of consistent training is proving problematic for staff. The statutory nature of the duty is forcing teachers to make a judgment on pupils based on a few hours training, often provided by way of a video and then hastily report cases rather than dealing with them in common sense ways. National Union of Teachers members voted unanimously in favour of scrapping the policy at their last conference in Brighton with one delegate claiming it had so far caused ‘suspicion in the classroom and confusion in the staffroom’.

A huge part of a young child’s development is built around their relationships with parents, caregivers, relatives, teachers and peers. Making children as young as four, who are unlikely to be able to understand, let alone hold, extremist beliefs, distrustful of adults and suspicious of their peers is clearly counter-productive to their education.

We would urge Labour MPs to add their support to the private members’ bill on Friday. We support the amendment to remove the statutory requirement of Prevent for primary schools and nurseries and encourage the return of safeguarding in early years’ education that is cooperative and voluntary where a reasonable level of suspicion exists.

Briefing on The Prevent Strategy in early years education

We released a briefing today, The Prevent Strategy in early years education.

The Government’s Prevent Strategy places a statutory obligation on teachers and educators, without any prior background in counter-terrorism, to identify and report students who express so-called extremist views.

This briefing, which was sent to all Labour MPs, examines the efficacy of Prevent and highlights the lack of consistent training provided to education professionals. It also argues that since its inception the Prevent strategy has risked encouraging an atmosphere of distrust and discrimination within our schools.

LCHR are supporting Private Members’ Bill, ‘Counter Terrorism and Security Act 2015 (Amendment) Bill’ sponsored by Conservative MP Lucy Allan. The bill provides an exemption for teachers, carers and nursery staff working in primary schools and early years education from the statutory requirement of Prevent. The second reading of the bill will take place on 24th March 2017 and we are asking Labour MPs to attend the debate and support the amendment.