Conor Casey is a Senior Fellow of Policy Exchange’s Judicial Power Project and Senior Lecturer in Public Law at the University of Surrey School of Law.
This year marks the seventy fifth anniversary of the United Kingdom’s ratification of the European Convention on Human Rights and the twenty fifth anniversary of the Human Rights Act 1998 (HRA) coming into force. These milestones come at a time when the UK’s future relationship with the ECHR is being subjected to searching scrutiny.
While the Labour Government has expressed its absolute commitment to ECHR membership and the HRA, there are those within the party who think the UK should be willing to leave if it proves necessary to address the migration crisis, and the Government itself has committed to examining the application of the ECHR in asylum and immigration policy.
Meanwhile, on the other side of the political spectrum, Reform has committed to leaving the ECHR and replacing the HRA with a British Bill of Rights, and there is every possibility the Conservative Party will commit to either fundamental reform of human rights law, or ECHR withdrawal, at its party conference next week.
Even the Liberal Democrats seem to agree that some reform might be warranted, with their leader Sir Edward Davey stating that he might be open to change: “if you could do it collectively, working through with the court, with European colleagues to try and make sure that human rights are protected fundamentally but it doesn’t have perverse consequences, one could look at that.”
This is not the first-time political parties have promised significant reforms to our system of human rights law. The Future of Human Rights Reform, a new report for Policy Exchange by my colleagues Professor Richard Ekins KC (Hon) and Sir Stephen Laws KC (Hon),chronicles over a decade’s worth of failed reform attempts by the then Conservative Government and offers a forensic account of what went wrong.
These included a Commission on a UK Bill of Rights, diplomatic efforts at the European level to tackle judicial overreach by the European Court of Human Rights, the Independent Human Rights Act Review, and the Bill of Rights Bill 2022. None of these initiatives made any difference to the issues that motivated calls for reform in the first place, namely how human rights law “distorts parliamentary democracy, disables good government, and departs from the ideal of the rule of law.”
The report offer compelling explanations of how and why these efforts were either “misconceived or ineptly carried forward”. It also offers an important checklist of objections any serious would-be reformer must provide compelling answers to, including the relationship between the ECHR and the Belfast (Good Friday) Agreement, or the foreign policy implications of pursuing serious ECHR reform or even withdrawal.
Any political leader serious about reforming Britain’s system of human rights law, and its relationship with the ECHR, would do well to read the report and take to heart both its lessons from the past and prescriptions for the future.
Why did these successive attempts at reform fail? Ekins and Laws identify several flaws with previous approaches to reform, including evident uncertainty about what reform was trying to achieve and near exclusive reliance on senior lawyers to offer answers to what are moral and political, and not merely legal questions.
But perhaps the most striking and important failure they identify is an intellectual and philosophical one: that those tasked with reform failed at any point over its fourteen years in power to understand that the protection of human rights does not, in fact, require either a domestic or an international court to engage in the judicial review of legislation.
Respecting human rights is all about affording people the kind of treatment that justice demands they enjoy. It is often overlooked, by those who think human rights find their primary protection in a specially designated bill of rights and judicial review, that a great portion of ordinary legislation on our statute book exists precisely to protect human rights.
Concern for justice and human flourishing is reflected in detailed statutes enacted by Parliament which provide for things like: access to healthcare and medicine; tiers of publicly funded education; social welfare safeguards for the elderly, ill, and those seeking work; housing assistance for the homeless or those on low-wages; protection from arbitrary eviction and security of tenure for renters; legislation and policies establishing labour rights and mandatory workplace protections; protection against modern slavery and forced labour; legislation prohibiting discrimination on grounds of race, religion, sexual orientation etc. by employers and service providers; and countless others.
Would-be reformers have thus far simply failed to countenance returning to the traditional constitutional position, long predating the ECHR and HRA, that Parliament can be trusted to protect human rights through ordinary statutes like these, without the need for domestic or supranational judicial second-guessing.
Because all their reform proposals began with the premise that some form of special human rights law backed by judicial review was indispensable, they found themselves unable to do more than legalistic tinkering while reaffirming the status quo they repeatedly claimed to be dissatisfied with.
Until reformers are willing to seriously consider returning to a system of protecting rights through Parliament and ordinary law, without recourse to domestic or supranational judicial review of legislation, they may risk falling hard at the same hurdles their reforming predecessors did over and over again.
