Bill of Rights or Bill of Retrogression?

When we take a brief look at the Bill, a textual point grabs our attention: phrases combining ‘courts’ and ‘may’. This wording might seem typical at first glance, yet, it is not. The word ‘may’ refers to discretionary power. Discretionary power, as a principle, is associated with the legislative and executive branches, since having the power to legislate and to execute comes with a degree of discretion among policies – as long as the political branches prioritise the common good. As to the judiciary, especially for litigation regarding human rights violations, judges are not in a position to possess discretionary power regarding which laws to apply in a concrete case, and to what extent.

For example, as it is stated above, the Bill reads that a court may adopt an interpretation of a right that diverges from Strasbourg jurisprudence. Additionally, the Bill states that courts may have regard to the development under the common law of any right that is similar to the Convention right. Even more, there is a provision stating that the courts may have regard to the preparatory work of the Convention. The latter provision reflects an originalist doctrine, associated with conservative-Republican appointed judges in the US. This is quite problematic.

First of all, this approach completely contradicts the understanding of the ECHR system based on the living instrument doctrine and evaluative interpretation. Secondly, in the US, even the originalist judicial philosophy is derived from the judgments of the Supreme Court since the US Constitution itself does not stipulate any human rights interpretation doctrine. In this context, for example, affirmative action or abortion can be deprived of the protection of a specific right as a result of an originalist judicial interpretation. Moreover, the Bill explicitly provides that courts may not adopt a post-commencement interpretation of a Convention right that would require a public authority to comply with a positive obligation. This provision may reduce the scope of the rights since positive obligations arising from ECtHR jurisprudence are a substantial part of human rights enforcement. By excluding the positive obligations regarding a Convention right, complete protection before courts and public authorities is not possible.

In sum, the only obligation for the courts arising from the Bill is to have particular regard to the text of the Convention right which consists of abstract phrases. Apart from that, the text refers to discretionary power whether the courts shall apply common law precedents or Strasbourg jurisprudence or its legal philosophy. There is no provision requiring courts to adopt a precedent which provides better human rights protection. This way, the human rights regime prescribed by the Bill will be amorphous.

Another observation coming out of the Bill is the structural attitude. The language and the textual structure of the Bill reflect a reaction towards the ECHR and the Strasbourg Court. The Bill explicitly emphasizes that it is not the ECtHR but the Supreme Court that determines the meaning and effect of Convention rights for domestic law. Moreover, the Bill explicitly prescribes that the judgments of the ECtHR are not part of domestic law. This does not make sense since the Strasbourg Court has never become a superior court in the British constitutional order. In other words, the HRA does not contain any provision bestowing either the Convention or the ECtHR judgments a superior rank in the domestic legal order. The obligation of taking into account ECtHR judgments does not mean that the British courts must adopt ECtHR judgments in an absolute way in any case. On the contrary, the current system of the HRA requiring the British courts to interpret Convention rights in light of ECtHR judgments prevents divergence between common law and Strasbourg jurisprudence and thus allows the British courts and the Strasbourg Court to interact with each other and bilaterally to contribute to the development of rights and European public order.

There is a provision in the Bill which introduces an obligation upon the courts, requiring them to give the greatest possible weight to the parliamentary democracy principle of supremacy of parliament on policy-making regarding competing interests and Convention rights. The provision is absurd and non-functional in several aspects. Firstly, since there is no codified supreme law of the land, the Westminster Parliament already prevails over the judiciary and the other institutions. Secondly, it is not the existence of parliamentary democracy but the non-existence of a (codified, rigid) constitution, which leads to the principle of legislative supremacy in the British constitutional order. Lastly and most importantly, the Parliament already has the ultimate power to create laws in a well-detailed way that courts cannot interpret other than in accordance with the intention of the Parliament. In other words, the British courts are already bound by what law prescribes.

The Bill itself emphasizes its intended function as re-balancing the relationship between the British courts, the ECtHR and the Westminster Parliament. It does not make sense since the current regime under the HRA does not cause an imbalance between the domestic institutions and the ECHR bodies. Requiring courts to interpret the legislation in accordance with the Convention rights does not undermine the principle of parliamentary sovereignty since interpreting a provision is only possible in instances where the provision itself is vague enough to give way for discretionary interpretation. If the provision is clear and straightforward, all the courts can do is issue a declaration of incompatibility which does not affect the legislative authority of the Parliament. Under the HRA system, the courts already lack the power to quash or strike down legislation because of inconsistency with Convention rights. In fact, the human rights regime under the HRA is a perfect example of redressing a balance between domestic law and the ECHR since the Act enables the UK to comply with its international obligations in domestic law without diverging from the principles of the British Constitution. The courts cannot prioritise a specific right among two competing ones, if the Parliament has already revealed its intention clearly by precise provisions.

Although the Bill itself sets forth Convention rights, it introduces novelties which are quite unfamiliar with the ECHR. Firstly, a new right, namely, the right to be tried before a jury draws attention. The right to a fair trial is already protected by the ECHR, so also by the HRA. The fact that the right to a jury trial does not exist in Scots law makes the significance and the comprehensiveness of the right in question more inconceivable. The Bill also requires courts to give great weight to the importance of protecting the freedom of speech in any case. This approach contradicts the universal principle that all rights in principle are fundamental without any ranking. Additionally, the Bill foresees limited protection for convicted prisoners and prohibits courts from finding deportation law to be incompatible with the right to family and private life without the existence of any extraordinary circumstances. Moreover, the Bill forbids human rights litigations arising from acts of public authorities during overseas military operations. In sum, the Bill creates a specific category of people and circumstances in which only a limited human rights protection is granted. This approach also means a divergence from the ECHR system in which human rights violations are considered on a case-by-case basis.

The Bill retains the declaration of incompatibility procedure. It means that the high courts may issue a declaration of incompatibility if they find legislation incompatible with a Convention right. This may look positive at first sight, yet it is not. First of all, it is not all courts but only the high courts which are authorised to issue such a declaration. Secondly, such a declaration is not mandatory and lastly, it neither affects the enforceability of the law to be applied in the particular case nor applies to the parties of the proceedings in which it is made. Above all, within the human rights regime prescribed by the Bill, this mechanism may not be as effective as it is now. Concretely speaking, it is the Convention friendly interpretation by the courts, not the declaration of incompatibility by the high courts, which is the primary instrument of the HRA for maintaining human rights protection. If a friendly interpretation is not possible, then the declaration of incompatibility as an exceptional measure may intervene. What the Bill does is abolish the principal procedure by preserving the exceptional one as an exception. Without Convention-friendly interpretation, the British judges might be more reluctant on issuing a declaration of incompatibility either.

The second provision that the Bill preserves is the one regarding the acts of public authorities. According to the Bill, acts of public authorities which are incompatible with Convention rights are deemed unlawful. The aforementioned provision seems to be similar to the one already existing in the HRA, yet it is not. The obligation imposed upon the public authorities to interpret the legislation, as far as possible, in accordance with the Convention rights no longer exists in the Bill. Without possessing this function, the executive authorities would turn into nothing more than the mouth that pronounces the words of the law without questioning whether the Convention-friendly interpretation is possible. Execution of a legislative provision having the possibility of contradicting a Convention right would be easily regarded as lawful according to the initiated human rights regime.

If we consider the word ‘reform’ as an act of progress or improvement on a specific issue, the answer easily would be no. Firstly, the principal aim of the HRA, domestic integration of the ECHR system into the British legal system, is most likely withdrawn. Provisions containing Convention rights, the declaration of incompatibility and the requirement for public authorities to act in accordance with the Convention rights seem to be covered-up provisions giving the impression that this is an upgrade rather than a complete repeal. Without a friendly interpretation of the Convention by the national judges, using the term ‘Convention rights’ is futile. By removing the obligation of taking into account ECtHR judgments, the adaptation of the ECHR into British law would most likely be diminished. Rather than an upgrade or reform, the Bill reflects a substantial deviation from the human rights regime and mindset which has been entrenched for more than 20 years.

Both the Government’s Independent Human Rights Act Review and the Parliamentary Joint Committee on Human Rights remark that the HRA has been working well. Therefore, the enactment of the Bill might lead to a significant increase in the number of cases brought against the UK and convictions as well before the ECtHR. It is well known that all substantial constitutional and democratic achievements were either initiated or introduced by the Labour or the Liberals in British history. However, a Conservative initiative away from these achievements is quite new for British politics. In this respect, the Bill can be also seen as the second round of the recent Conservative policy on keeping a distance from Europe, this time in the form of the Council of Europe.

Dr. Türker Ertas is Visiting Post-Doc Research Fellow at Maastricht University, Faculty of Law, and Assistant Professor of Comparative Constitutional Law at Dokuz Eylül University, Faculty of Law, Izmir, Turkey