The authoritative source for independent research on UK-EU relations

11 Aug 2022

Constitution

These are dangerous times in Europe. Russia’s aggression in Ukraine has shattered the continent’s peace and security and led to the first suspension and then expulsion of a state from the Council of Europe, the Strasbourg-based organisation founded after World War II to protect human rights, democracy and the rule of law 

The V-Dem Institute, the largest global dataset on democracy, classed Hungary, Poland, Serbia and Turkey as being among the top 10 autocratisers in the world in 2021. The President of the European Court of Human Rights (ECtHR) warns that, ‘This is a Europe in which the rule of law is at risk of disappearing’ – posing a ‘major, existential challenge’ for the European Union, too.    

Into this context has landed the Bill of Rights Bill (explained here), which would repeal and replace the Human Rights Act (HRA) 1998 – the means by which the UK gives effect in domestic law to the rights and freedoms in the European Convention on Human Rights (ECHR). 

While the government has clarified that the UK will remain a party to the ECHR, as Mark Elliott observes, the Bill aims at ‘substantially decoupling’ the UK from it.  

The Bill is causing concern at the Council of Europe. There are several reasons for this. For example, partly in response to the ECtHR’s decision to block a flight deporting asylum seekers to Rwanda, the Bill instructs UK judges not to have regard to any ‘interim measure’ issued by the ECtHR, i.e. any urgent order that the Court exceptionally issues where there is an imminent risk of irreparable harm.    

The Bill says that UK judges can diverge from the case law of the ECtHR – and no longer requires them to take it into account.    

It would also curtail legal enforcement of ‘positive obligations’ – that is, obligations on public authorities to take proactive steps to protect people’s rights rather than merely refrain from violating them.  

These include steps to protect people from foreseeable risks to their life, or to safeguard them from ill-treatment, such as human trafficking. This provision would also limit the circumstances in which public authorities must investigate failures to protect fundamental rights (like the Hillsborough inquest and Grenfell inquiry). 

These measures are either incompatible with the UK’s obligations under the ECHR (such as the instruction to disregard interim measures) or create a risk of incompatibility. The effect of the Bill will ultimately be more litigation before the European Court of Human Rights in Strasbourg, because applicants who cannot enforce their rights domestically will be more likely to take their cases to the ECtHR. This risk is acknowledged by the government’s own impact assessment.   

The Council of Europe Commissioner for Human Rights, Dunja Mijatović, warns the UK that weakening human rights protection ‘sends the wrong signal … at a time when human rights are under pressure throughout Europe’.  

For the parliamentary Joint Committee on Human Rights (JCHR),any reforms to the HRA that suggest we are wavering in our commitment to the Convention’s protections could be a green light for other, less committed nations to weaken their own human rights protections’. 

The UK government’s pronouncements on the Bill of Rights have so far primarily addressed a domestic audience. In doing so, they have ignored one of its most significant implications, as identified by the JCHR – that other, less democratic states are watching.   

We know from experience that attempts to undermine the ECtHR can be contagious and that states with poor human rights records take succour from statements emanating from mature democracies that legitimise their own rule-breaking.  

In 2015, Russia was watching the UK debate about cherry-picking which ECtHR judgments to abide by and which to ignore when it passed a law enabling the Russian Constitutional Court to declare rulings of any international human rights body ‘impossible to implement’.  

Fast forward to the present, and both the ECtHR and the Court of Justice of the EU have delivered rulings – as yet unimplemented – exposing attacks on judicial independence in Poland and Hungary, whose highest courts have, in turn, challenged the primacy of EU law, the provisions of EU treaties and the ECHR.  

The Bill of Rights would weaken the UK’s moral authority on this issue and make it harder to urge these states to change course.   

It would also make it harder for the UK to apply pressure to non-democratic states in particular cases – for example, to continue to demand the release of Osman Kavala, a Turkish human rights defender sentenced to life imprisonment on trumped up charges. 

Furthermore, it raises a question as to why the UK should be listened to when urging Russia to abide by an interim measure calling on it to prevent the execution of two British prisoners of war in the self-proclaimed ‘Donetsk People’s Republic’ when the Bill of Rights would tell our own judges to ignore such orders. 

It is here that we see the potentially damaging effects of the Bill of Rights for the UK’s role on the international stage.  

As the JCHR says, this ‘undesirable regression’ in rights protection would ‘damage the UK’s reputation internationally and weaken the government’s position when seeking to ensure other states uphold their human rights obligations’. 

In the post-Brexit world, the Council of Europe is the preeminent means for the UK to exercise ‘soft power’ influence across the continent.  

It should do so in the direction recommended by the Foreign Affairs Committee, which urged the government to ‘challenge ‘revisionist’ powers that seek to subvert the international system and weaken rights’. 

The Bill of Rights, if enacted, could place the UK in the revisionist camp, rather than with the rule-respecting nations.  

So would any talk of withdrawal from the European Convention, an idea revived by the Attorney General Suella Braverman and Liz Truss during the Tory leadership contest, which would place the UK in the company of Russia and Belarus on the outside if ever followed through. 

Those hostile to human rights in authoritarian states are watching. So, too, are human rights defenders in those states, for whom the ECtHR is often the last ‘hope for justice’.  

There is a contradiction between the UK supporting Ukraine and simultaneously setting itself on a collision course with the same Council of Europe institutions that President Zelensky says offer hope of achieving accountability for Russia’s barbarous actions. 

In September, discussion resumes about the future role of the Council of Europe, and plans for a rarely-held summit of heads of state and government 

At the same time, Parliament will return – and with it the Bill of Rights Bill for its second reading. This is scheduled for 12 September, with only one day allocated for debate.  

It will be difficult for the UK to play a constructive role in shaping a Council of Europe fit for the future while promoting a Bill that would undermine respect for some of its fundamental values. 

By Dr Alice Donald, Associate Professor, School of Law, Middlesex University, and Philip Leach, Professor of Human Rights Law, Middlesex University. 

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