Is a UK Bill of Rights possible

considering the implications of the

European and domestic constitutional

landscape in the UK?

Joshua Maddison

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LLB Law

Legal Dissertation

March 2014

Statement of Originality

This dissertation is submitted in partial fulfilment of the requirements of LLB Law. I, the

undersigned, declare that this project is my original work. Where I have taken ideas and/or

wording from another source this is explicitly referenced in the text.

I give permission that this project may be photocopied and stored in hard copy and electronic

form and be made available for inter-library loan for the purposes of research.

I am providing an electronic source from which this project was printed. I give permission for

this project and the electronic source to be used in any manner considered necessary to fulfil

the requirements of the University of Portsmouth Regulations, Procedures and Codes of

Practice.

Word Count: 10, 997 (excluding front page, title page, statement of originality,

acknowledgments, synopsis and appendices.)

Signed: ..............................................................................................

Name of Student: Joshua Maddison

Date: 26 March 2014

Acknowledgments

First, I would like to thank Donal. Without you I doubt I would have made it to the end of

this somewhat never-ending task. For your continuous support and guidance and no doubt

patience, through any of my odd moments and my emails which in themselves were

dissertations.

Second, I want to thank all my family, but especially my parents and girlfriend. For keeping

me sane, pushing me to go further and ultimately making the last four years something I will

never forget.

Lastly, to my laptop. I honestly do not know how you have survived the last 8 months of

power draining, keyboard bashing 12 hour days. A technological miracle. Thank you.

Is a UK Bill of Rights possible considering

the implications of the European and

domestic constitutional landscape in the UK?

Joshua Maddison

Synopsis

This dissertation aims to critically discuss the possibility of a future UK bill of rights. It will

be argued that, despite constant political attention and the recent publication of the bill of rights

Commission report, little thought has been given to various legal and political implications

which could have a substantial effect on the possibility of future reform.

The UK constitution in its current state is first examined and the role that bill of rights play

within constitutions is shown to help understand the current problems and to provide a

reference point for later analysis.

The Human Rights Act 1998 and its relationship with the European Convention system is then

assessed in order to highlight the claimed problems with UK human rights law, where it is

submitted that significant change would be needed to address the underlying issues. The

Commission’s report is incorporated throughout, with its work and criticisms thereof helping

to put forward two potential UK bill of rights models.

From this, the final two chapters will look to consider each model in turn. Discussion will

however focus on whether certain legal and political implications of the European and domestic

constitutional landscape could undermine the possibility of these models. For example, specific

attention will be given to membership of the EU and Council of Europe, the forthcoming

accession of the EU to the ECHR, the Charter of Fundamental Rights, UK common law and

various devolution factors.

In concluding, it will be seen whether the discussed factors render the possibility of a future

UK bill of rights unlikely.

This dissertation will use numerous sources, from books, journals, legislation and cases, to

government reports, academic blogs and political newspaper reports.

Contents

CHAPTER 1 An Introduction ................................................................................................ 1

CHAPTER 2 The UK’s Changing Constitution and Bills of Rights ................................... 3

2.1 Its Underlying Principles: Parliamentary Sovereignty & the Rule of Law ................................... 3

2.2 Human Rights in the UK ............................................................................................................... 5

2.3 A Bill of Rights defined ................................................................................................................ 6

2.3.1 Characteristics ........................................................................................................................ 7

2.3.2 More than just a legal document ............................................................................................ 7

CHAPTER 3 The HRA and Convention System: What are the problems? ...................... 9

3.1 The ‘Ownership’ Issue ................................................................................................................ 10

3.2 A Transfer of Power .................................................................................................................... 13

3.3 ‘Argentoratum locutum, iudicium finitum’- ‘Strasbourg has spoken, the case is closed’ .......... 15

Final Thoughts .................................................................................................................................. 19

CHAPTER 4 Denunciation and EU Law ............................................................................ 21

4.2 Withdrawing From the ECHR: The Possibility and its Consequences ....................................... 26

4.2.1. Withdrawal from the Council of Europe? ........................................................................... 27

4.2.2. Withdrawal from the EU? ................................................................................................... 28

4.2.3. The EU’s accession to the ECHR ....................................................................................... 30

4.3.1 A Political Disaster?............................................................................................................. 32

4.3.2 The Article 58 Consequence ................................................................................................ 34

4.4 The Common Law Lives On ....................................................................................................... 34

4.5. Final thoughts............................................................................................................................. 36

CHAPTER 5 Devolution and the ‘Ownership’ Issue ......................................................... 38

5.1 Disorder of the Legal Orders ...................................................................................................... 38

5.2 Who has the power? The Devol-ution is in the detail of the statutes .......................................... 43

5.3 Final Thoughts ............................................................................................................................ 46

CHAPTER 6 Conclusion ....................................................................................................... 47

BIBLIOGRAPHY .................................................................................................................. 49

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CHAPTER 1

An Introduction

The universality of human rights within modern liberal society means that they find themselves

at the heart of constitutions around the world; in the UK this is no different. The recognition of

rights (a modern interpretation of the rule of law1) sits alongside parliamentary sovereignty as

one of the bedrocks of the constitution. Yet not since 1791, when Tom Paine’s Rights of Man2

called upon the state to refrain from abusing civil liberties, has so much strife and controversy

surrounded the debate about the protection of fundamental rights and freedoms within a nation.

The Human Rights Act,3 which domestically incorporated ‘Convention rights’4 and equipped

the judiciary with new powers to uphold such rights, has had an embattled life.5 Criticisms of

the Act and its relationship with the European Convention on Human Rights6 and European

Court of Human Rights7 have meant that it has been caught up in a political storm which has

resurfaced the Bill of Rights (BoR) debate. This is a debate that is no longer just a concern for

the informed elite but instead the entirety of a society which is obsessed with the balance

between freedom and security.8

Much ink has been spilled on the possible BoR solution, but at times there has been a reluctancy

to confront the underlying fundamental issues concerning the HRA and Convention system.

The report of the recent BoR Commission9 is evidence of this.10 Not only has this resulted in

1 V Bogdanor, ‘Sovereignty of Parliament or the Rule of Law?’ (Magna Carta Lecture 15 June 2006) <

http://www.runnymede.gov.uk/portal/site/magnacarta/menuitem.d12521181aaae4bdc534227c9f8ca028/ >

Accessed 2 December 2012. 2 T Paine, Rights of Man (First published 1791, Dover Publications Inc. 2000). 3 Human Rights Act 1998 (HRA), coming into full force on 2 October 2000. 4 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human

Rights, as amended) (ECHR); HRA, s 1. 5 Lord Dyson, ‘What is wrong with Human rights’ (Hertfordshire University Lecture 3rd November 2011) <

http://supremecourt.uk/news/speeches.html > Accessed December 2012. 6 ECHR. 7 ECtHR, also referred to as ‘Strasbourg’ or Strasbourg court. 8 F Klugg, ‘A Bill of Rights: What For?’ in C Bryant (ed), Towards a New Constitutional Settlement (The Smith

Institute 2007). 9 Commission on a Bill of Rights, ‘A UK Bill of Rights: The Choice before us’ 18 December 2012 Vol. 1 <

http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013. 10 M Elliot, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’ [2013]

EHRLR 137-151.

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an inability to properly consider possible BoR options, but has subsequently led to a more

fundamental issue; a failure to consider the legal and political implications of the European and

domestic constitutional landscape on a potential UK BoR.

Thus, there needs to be an analysis of the HRA’s perceived problems to attempt to understand

what change is needed. Putting forward potential models will allow a meaningful discussion

about the effects of the European and domestic factors and whether they look to undermine the

possibility or effect of future UK BoR’s respectively. To be able to do this, there needs to be

an understanding of the UK constitution in its current state and to grasp what exactly is meant

by a BoR.

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CHAPTER 2

The UK’s Changing Constitution and Bills of Rights

The UK’s unwritten constitution can be said to be in a state of constant change.11 The

fundamental laws that determine how this state is, and should be governed are drawn not from

a single legal document, but an accumulative variety of statutes, conventions, common law

decisions and Treaties. A more accurate term for the UK constitution would thus be a un-

codified one, making it unique amongst most other countries. The reason for this is that written

constitutions do not happen by accident, they are deliberate, spawning from a defining political

event.12 Historically, the UK has lacked such an event,13 instead as Laws LJ states, the UK

constitution cannot be a creature of a single moment as it has been conditioned over the

centuries by the changing common law.14

This constitution is however not supreme over other forms of law. Acts of Parliament (the

highest source of law in the UK) are all afforded equal status, forming part of the constitution

itself.15 There is no constitutional hierarchy of importance between Acts, leaving aside obiter

in Thoburn16 and the effect of the HRA.17

2.1 Its Underlying Principles: Parliamentary Sovereignty & the Rule of Law

At the heart of any interpretation of the UK constitution is its defining principle of

parliamentary sovereignty.18 Put simply, this means that Westminster Parliament possesses

ultimate supreme law making power. It can ‘make or unmake any law it wishes’.19 There is no

11 Stephen Sedley, ‘Beware Kite Flyers’ (London review of books, Vol. 35, No.17, 12 September 2013) <

http://www.lrb.co.uk/v35/n17/stephen-sedley/beware-kite-flyers > Accessed 11 September 2013. 12 A Tomkins, Public Law, (OUP Oxford 2003) 7. 13 A Blick, ‘Codifying – or not codifying – the UK constitution: A Literature Review’ (Centre for Political and

Constitutional Studies King’s College London, For House of Commons Political and Constitutional Reform

Committee 23 February 2011) < www.parliament.uk > Accessed July 2013. 14 Laws LJ, ‘Common Law and State Power’ (Hamlyn Lectures 27 November 2013) < www.Judiciary.gov.uk >

Accessed January 2 2014. 15 L Webley & H Samuels, Complete Public Law, (OUP Oxford 2nd edn, 2012). 16 Thoburn v Sunderland City Council [2002] EWHC 195, [2002] 4 All ER 156 (LJ Laws). 17 HRA. 18 Dicey, A.V. An Introduction to the Study of the Law of the Constitution (10th edn, 1959). 19 ibid 38.

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higher authority,20 its power ‘knowing only political and moral limits’.21 De jure limits on its

power are considered by some to be present in EU and devolution factors22 (see chapters 4 &

5). Such limitations are only there however because Parliament wishes them to be. In theory

no Parliament can limit its successor’s sovereignty,23 and so their effects could be expressly

repealed.

An accountable and elected Parliament ultimately decide the shape of the constitution,24 and so

the UK constitution can further be defined as a political one. The basis of this political

constitution is, due to a representative democracy,25 ‘sovereignty of the people.’26 Legal

decisions and human rights protection are thus within a political arena, rather than a legal one.27

This sovereignty is not totally unconstrained however. Another Diceyean theory, the rule of

law, asserted as far back as the Magna Carta,28 has been and is now more than ever seen as one

of the fundamental principles of the UK constitution.29 In essence it is the limitation by law of

all state power that is exercised,30 being described as ‘a principle of institutional morality’31

required in a democratic constitution. In modern times, its definition is extended to ‘the

recognition of basic but fundamental human rights in any liberal society.’32 Judges are seen as

the guardians of the rule of law. Their role has been greatly expanded by certain constitutional

reform33 and has led to some judges assertively suggesting within this context that ‘The rule of

20 ibid. 21 Lord Hailsham, The Dilemma of Democracy Diagnosis and Prescription (Collins Reprint edn 1978). 22 V Bogdanor, ‘Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty’ (2012) 32(1)

OJLS 179-195. 23 A Bradley, The sovereignty of Parliament – Form or Substance? in J Dowell & J Oliver (eds) The Changing

Constitution (OUP 6th edn 2007). 24 Taylor Robert B, ‘The Human Rights Act 1998: A Bill of Rights for Britain?’ (Durham theses 2009, Durham

University) < http://etheses.dur.ac.uk/439/ > Accessed January 10 2013, 6. 25 Pinto-Duschinsky M, Bringing Rights Back Home: Making human rights compatible with Parliamentary

Democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk > Accessed September

20 2013. 26 Dicey (n 18). 27 Taylor (n 24). 28 Magna Carta 1215. 29 J Jowell, The Rule of Law and Its Underlying Values, in J Dowell & J Oliver (eds) The Changing

Constitution (OUP 6th edn 2007). 30 Dicey (n 18). 31 A Lester & K Beattie, Human Rights and The British Constitution, in J Dowell & J Oliver (eds) The

Changing Constitution (OUP 6th edn 2007). 32 V Bogdanor, ‘Human Rights and The New British Constitution’ (JUSTICE Tom Sargant Memorial Annual

Lecture 2009) < www.justice.org.uk > Accessed September 15 2013. 33 European Communities Act 1972 (ECA); HRA.

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law enforced by the courts is the ultimate controlling factor on which our constitution is

based.’34 The judiciary’s role has been expanded no more so than in the area of human rights.

2.2 Human Rights in the UK

Human rights protection in the UK has gradually developed from residual civil liberties left

unrestricted by the state, to a concept of positive rights that the state has a duty to respect.35

These rights were a product of judicial decisions over time,36 labelled as ‘common law rights.’

This development was accelerated after the devastation of World War II.37 The post war era

influenced38 the Universal Declaration of Human Rights39 which in turn inspired the now ever

present ECHR; a statement of basic civil and political rights a signatory state is obligated to

afford individuals.40 Since December 2nd 2000 the HRA,41 a domestic equivalent of the ECHR,42

has worked simultaneously43 with the common law to provide the basis for a pan European

recognition and protection of human rights in the UK.

The HRA has been drafted in such a way that it looks to preserve parliamentary sovereignty,

while providing recourse for individuals against the state44 when their Convention rights are

violated.45 Legislation is interpreted by the UK courts ‘as far as it is possible’ to give effect in

a way that is compatible with Convention rights,46 while having regard to ECtHR

jurisprudence.47 In doing so, if interpretation becomes strained and an incompatibility apparent,

then judges are charged with the power to issue ‘declarations of incompatibility’,48 alerting the

government that legislation is in breach of Convention rights. Parliament in theory possesses

34 R (Jackson) v Attorney General [2005] UKHL 56 [107] (Lord Steyn). 35 L Webley & H Samuels, Complete Public Law, (OUP Oxford 2nd edn, 2012). 36 Entick v Carrington [1765] EWHC KB J98. 37 ‘The Commission’s Report’ (n 9) 10. 38 Department for Constitutional Affairs, Review of the Implementation of The Human Rights Act July 2006 <

http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/peoples-rights/human-

rights/publications.htm > Accessed 5 January 2013. 39 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III). 40 ECHR, Art 1. 41 HRA. 42 H Fenwick, G Phillipson & R Masterman (eds.) Judicial Reasoning under the UK Human Rights Act

(Cambridge University Press, 2007). 43 Osborn v Parole Board [2013] UKSC 61. See also HRA, s 11. 44 HRA, s 6. 45 HRA, s 7. 46 HRA, s 3. 47 HRA, s 2. 48 HRA, s 4.

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the final say on whether the incompatibility is amended.49 S.4(6)(a) confirms that a declaration

‘does not affect the validity’ and continuance of the provision in question.50

Viewed in the wider context however, the final say arguably lies with the courts. Ignoring a

declaration and a likely subsequent Strasbourg judgement puts the UK in breach of

international law, although not affecting domestic law itself. Article 46 of the Convention

provides an international obligation to ‘abide’ by ECtHR decisions.51 A failure to do so results

in political consequences such as governmental fines and underlying issues within the Council

of Europe.52

The resulting effect on the constitution is that it currently stands at an intermediate stage

between legal and political constitutionalism.53 By placing ‘centre stage, rights that constrain

the UK in international law’54 the HRA shares a similar effect to that of a legally supreme BoR.

In its own way it limits the legislative power of Parliament through political pressure. This

hints at a transitional shift towards a more legal constitution, and marks the Act as having

tempered the absolutism of Dicey’s theory of Parliament.55

2.3 A Bill of Rights defined

Much like the constitutions for which they are contained in, there is no one definitive model of

a BoR.56 From mere interpretative instruments such as the New Zealand Bill of Rights Act,57

which avoids legislative constraints, to the more constitutional text in the US58 which voids

legislation through judicial review.59

49 HRA, s 10. 50 HRA, s 4(6)(a). 51 ECHR Art 46. 52 See Hirst v the United Kingdom (No 2) [2005] ECHR 681. 53 International Transport Roth GmbH and Others v Secretary of State for the Home Department [2002] 3 WLR

344. 54 M Elliot, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’ [2013]

EHRLR 137-151, 148. 55 N Kang-Riou, Confronting the Human Rights Act 1998: Contemporary themes and perspectives (Routledge

2012) 2. 56 M Darrow and P Alston. ‘Bills of Rights in Comparative Perspective’ in Alston, P. (ed.) Promoting Human

Rights Through Bills of Rights: Comparative Perspectives (Oxford: Oxford University Press, 1999). 57 New Zealand Bill of Rights Act 1990. 58 United States Bill of Rights 1789. 59 Marbury v. Madison, (1803) 5 U.S. (Cranch 1) 137.

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Avoiding a rigid definition, loosely it can be defined as a document which ‘declares the

fundamental rights of all people within a nation at a given moment in time by virtue of their

common humanity’,60 which is afforded a degree of constitutional status, making it superior to

other laws.

2.3.1 Characteristics

Firstly they establish those human rights which are regarded as of particular importance at that

time,61 marking a move forward as opposed to being regressive.62 This could be defined by its

nation or implemented purely by a process of incorporating international human rights

domestically.63

Secondly they are seen as binding upon governments.64 A BoR must be held as constitutionally

higher than other forms of law. This can be represented in two ways. One, they can only be

overridden with significant difficulty, normally via ‘constitutional entrenchment’. Two, and

what ultimately distinguishes BoR, is the extent of power vested in the judiciary to strike down

legislation; ‘judicial entrenchment’. A more accurate description nowadays would be to say

there must be an increase in judicial power to, at the least, declare legislation incompatible with

this constitutional law.

Lastly they should offer some form of redress for violations.65 Individuals should be able to

hold governments to account for any breaches of their rights and obtain effective remedies.

2.3.2 More than just a legal document

60 The Commission’s Report (n 9) 53. 61 Darrow and Alston (n 56) 10. 62 Canadian Charter of Rights and Freedoms 1982; New Zealand Bill of Rights Act 1990; See also A Donald, ‘A

Bill of Rights for the UK? Why the Process Matters’ [2010] 5 EHRLR 459. 63 A Donald, P Leach & A Puddephatt, Developing a Bill of Rights for the UK (London: Equality and Human

Rights Commission Research Report 51, 2010) < http://www.equalityhumanrights.com/legal-and-policy/bill-of-

rights/developing-a-bill-of-rights-for-the-uk-research-report/ > Accessed 10 August 2013. 64 P Alston, Promoting Human Rights through Bills of Rights: Comparative Perspectives (Oxford: Oxford

University Press, 1999). 65 ibid.

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A BoR is more than just a legal document to conform to. It is autochthonous, defining what a

constitution is based upon, and providing a beacon for the people to look to and see as their

own;66 its role is symbolic.67

This constitutional document therefore plays an identificatory function as they are often the

offspring of a defining constitutional ‘moment’,68 a symbol of a brighter future.69 The

Grundgesetz of Germany exemplifies this.70 The inherent link to national identity means that it

is essential for a BoR to gain widespread public support and ownership. As Wadham suggests,

‘The support of lawyers and judges is not enough…. It needs to be known about and supported

by the communities and peoples that it is designed to be used by’71 to have any real effect and

survive and thus must be tailored to suit the culture and tradition of a nation.

A BoR must thus provide an educative role in society in order to fulfil its requirements;

ensuring an understanding of the nature of rights in a constitution. Bogdanor asserts ‘The

protection of human rights depended not only on laws and institutions, but on a spirit

favourable to human rights’.72 The importance of these functions are paramount. A BoR can be

seen as part law, part symbolism, part aspiration73 and as shown part educative.

It is the absence of these functions of a BoR and the causing of a shift towards a form of legal

constitutionalism that provide the principle reasons why there are calls for the HRA to be

replaced by a UK BoR.

66 DCA (n 38). 67 F Klug, ‘A Bill of Rights: Do We Need One or Do We Already Have One?’ [2007] Public Law (Winter) 701

at 713. 68 The JUSTICE Constitution Committee, A British Bill of Rights: Informing the Debate (2007) <

http://www.justice.org.uk/resources.php/11/a-british-bill-of-rights > Accessed September 2 2013, 106. 69 Amhlaigh C M, ‘Whether you agree with its conclusions or not, the bill of Rights Commission hit on an

important issue for human rights and the future of Britain.’ (UK Const. L. Blog, 19th December 2012) <

http://ukconstitutionallaw.org/2012/12/19/cormac-mac-amhlaigh-whether-you-agree-with-its-conclusions-or-

not-the-bill-of-rights-commission-hit-on-an-important-issue-for-human-rights-and-the-future-of-britain/ >

Accessed January 16 2013. 70 The Basic Law for the Federal Republic of Germany 1949. 71 Wadham, J. ‘Why Incorporation of the European Convention on Human Rights is Not Enough’ in Gordon, R.

& Wilmot-Smith, R. (eds.) Human Rights in the United Kingdom (Oxford: Oxford University Press, 1996). 72 Bogdanor (n 32). 73 Klug (n 67).

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CHAPTER 3

The HRA and Convention System: What are the problems?

The HRA has been labelled by some as ‘the greatest constitutional reform in the UK of the

twentieth century’;74 a piece of legislation that would ‘bring rights home’,75 with the long road

to Strasbourg no longer necessary.76 However the Act has not had an easy upbringing.77 Caught

up in the ‘war on terror’ era since 9/11, it has found it difficult to evade political and public

hostility. As its provisions attempted to challenge a proliferation of laws and practices in

controversial areas such as terrorism,78 national security79 and asylum, hostility towards the act

centred on claims it was a threat to public safety.80 Cameron promised to repeal and replace the

HRA with a British BoR which would allow for a more hard-nosed approach to freedom and

security and ‘give us our identity as a free nation’.81 These calls continued over the years, with

hostility focusing on the HRA’s relationship with the ECHR and Strasbourg, for example in

74 A Lester & K Beattie, Human Rights and the British Constitution, in in J Dowell & J Oliver (eds) The

Changing Constitution (OUP 6th edn 2007). 75 Rights Brought Home: Human Rights Bill HL (1997 -98) 119. 76 HL Deb 03 March 1999 vol 597 col 1657. 77 M Amos, ‘Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the

Answer? [2009] 72(6) MLR 883. 78 The Anti – Terrorism, Crime and Security Act 2001. 79 See I Khan, ‘Human Rights in an Age of Terror’ in Kang-Riou N, Confronting the Human Rights Act 1998:

Contemporary themes and perspectives (Routledge 2012). 80 D Cameron, ‘Balancing Freedom and Security – a Modern British Bill of Rights’ The Guardian (June 26,

2006, Centre for Policy Studies) < http://www.theguardian.com/politics/2006/jun/26/conservatives.constitution

> Accessed 5 January 2013, ‘The Human Rights Act has a damaging impact on our ability to protect our society

against terrorism’. 81 ibid.

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regards to judicial decisions that prisoners should have a right to vote;82 something Cameron

said made him feel ‘physically ill’.83

The persistency and durability of political calls eventually led to consigning the issue to a BoR

Commission.84 Yet the implications of the Coalition Government revealed itself. The Liberal

Democrats, who were not so adverse to the Act, ensured that the terms of reference of the

Commission were confined to investigating a UK BoR which built ‘on our obligations under

the ECHR’.85 This was clearly contrary to Conservative attitudes.86

Notwithstanding this, the Commission published its report in 2012 advocating – albeit

disjointedly – in favour of a UK BoR.87 The Commission ultimately reduced potential reform

to a rebranding exercise of the HRA. Although accepting that the HRA was to an extent a BoR

in itself,88 they stated that an explicitly British instrument would address the ‘ownership’ issues

that have plagued the Act.89 Their report has however been critically labelled as ‘a damp

squib’90 as it failed, in part due to its restrictive terms of reference, to engage with many

fundamental factors. Thus the preceding analysis will look to identify the claimed problems of

the HRA and Convention system, attempting to go beyond the Commission.

3.1 The ‘Ownership’ Issue

The most common criticism of the HRA is that it lacks public understanding and ‘ownership’,91

something which is required of a BoR (as it often claimed to be92). The Commission’s strongest

82 Hirst v the United Kingdom (No 2) [2005] ECHR 681; see also Smith v Scott [2007] SC 345 [2007] CSIH 9.

83 HC Deb, 3 November 2010, vol 517, col 921. See also HC Deb, 24 October 2012, cols. 922-3 (David

Cameron) ‘prisoners are not getting the vote under this Government’. 84 Cabinet Office, The Coalition: Our Programme for Government (HM Government 20 May 2010) <

https://www.gov.uk/government/publications/the-coalition-documentation > Accessed 8 March 2014, 10. 85 Commission on a Bill of Rights, A UK Bill of Rights: The Choice Before Us (18 December 2012,Vol 1) <

http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, 5. 86 See Helen Fenwick, ‘Conservative Anti-Rhetoric, the Bill of Rights ‘Solution’ and the Role of The Bill of

Rights Commission’, in R Masterman & I Leigh (eds), The United Kingdom's Statutory Bill of Rights:

Constitutional and Comparative Perspectives (OUP/British Academy 2013) 328. 87 The Commission’s Report (n 85) 176, paras 12.7-12.11. 88 The Commission’s Report (n 85) 26, para 68. 89 ibid 176, paras 12.8-12.9; See also Adam Wagner, ‘The Bill of Rights Commission report: a modest proposal’

(UK Human Rights Blog December 18 2013) < http://ukhumanrightsblog.com/2012/12/18/the-bill-of-rights-

commission-report-a-modest-proposal/ > Accessed January 2013. 90 See M Elliot, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’ [2013]

EHRLR 137-151. 91 HL Deb, 20 June 2013, vol 746, col 445. 92 F Klug, ‘The Human Rights Act is a British Bill of Rights’ The Guardian (13 December 2012) <

http://www.theguardian.com/commentisfree/2012/dec/13/human-rights-act-british-bill-rights > Accessed 1

October 2013.

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argument for a BoR was that the ‘Act was so damaged in popular consciousness that a

rebranding exercise is imperative.’93 Unfortunately as Elliot suggests, little explanation is

offered to support this conclusion.94

A starting point for this ‘ownership issue’ is said to be the lack of education and public

engagement before and during the Acts implementation95 and throughout its life.96 There is no

doubt that the Act has failed to become fully integrated politically97 and this is inconsistent

with the introduction of constitutional documents.98 A dangerous misconception about human

rights in the UK99 is evidenced by the fact that the general public, victims and even public

authorities have insufficient knowledge of human rights100 and the HRA.101 Without

understanding, support and ownership is unlikely to follow. Fenwick states the HRA ‘was

never really sold to the people of the UK’.102 The Commission dismissed this as a minor cause

however, as further educative incorporation would still fail to overcome the critical narrative

of the media or the intense politicisation of rights.103

This lack of educative role does become more problematic however when the more substantial

cause of the ownership issue is the way the Act has been openly criticised by political MPs104

93 Goss R, ‘What is the Bill of Rights Commission’s ‘strong argument’?’ (UK Const. L. Blog 20th December

2012) < http://ukconstitutionallaw.org/2012/12/20/ryan-goss-what-is-the-bill-of-rights-commissions-strong-

argument/ > Accessed 7 February 2013. 94 Elliot (n 90) 141. 95 Rights Brought Home (n 75). 96 F Klug, ‘A Bill of Rights: Do We Need One or Do We Already Have One? (2007) Public law (Winter) 701-

719. 97 C Harvey, ‘Taking the Next Step? Achieving another Bill of Rights’ [2011] 11 (1) European Human Rights

Law Review 24. 98 See Joint Committee on Human Rights, A Bill of Rights for the UK? (2007-08, HL 165, HC 150). 99 A Donald, P Leach & A Puddephatt, Developing a Bill of Rights for the UK (London: Equality and Human

Rights Commission Research Report 51, 2010) < http://www.equalityhumanrights.com/legal-and-policy/bill-of-

rights/developing-a-bill-of-rights-for-the-uk-research-report/ > Accessed 10 August 2013. 100 Ministry of Justice, People and power: shaping democracy, rights and responsibilities (March 30, 2010) <

http://www.opendemocracy.net/ourkingdom/anthony-barnett/people-and-power-shaping-democracy-rights-and-

responsibilities-brown-gove > Accessed 25 March 2014, 4; See also A Donald, P Leach & A Puddephatt,

Developing a Bill of Rights for the UK (London: Equality and Human Rights Commission Research Report 51,

2010) < http://www.equalityhumanrights.com/legal-and-policy/bill-of-rights/developing-a-bill-of-rights-for-the-

uk-research-report/ > Accessed 10 August 2013. 101 Department for Constitutional Affairs, ‘Review of the Implementation of The Human Rights Act’ July 2006

< http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/peoples-rights/human-

rights/publications.htm > Accessed 5 January 2013; see A Wagner, ‘No, The Sun, the Human Rights Act is not

the EU’ (UK Human Rights Blog February 10 2013) < http://ukhumanrightsblog.com/?s=the+sun > Accessed

October 2013. 102 H Fenwick, Civil Liberties and Human Rights (Routledge-Cavendish, 2007) 156. 103 Goss R, ‘What is the Bill of Rights Commission’s ‘strong argument’?’ UK Const. L. Blog (20th December

2012) < http://ukconstitutionallaw.org/2012/12/20/ryan-goss-what-is-the-bill-of-rights-commissions-strong-

argument/ > Accessed 7 February 2013. 104 BBC, ‘Home Secretary Theresa May wants Human Rights Act axed’ BBC News Politics (2 October 2011) <

http://www.bbc.co.uk/news/uk-politics-15140742 > Accessed 2 March 2014.

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and misrepresented by the media.105 For example, the HRA has often been labelled as a ‘charter

for terrorists and criminals’.106 This hostility can be intrinsically linked to the fact that

Parliament feels constrained on supposed political decisions involving sensitive matters such

as counter-terrorism.107 The lack of support then is not surprising as it is these areas where

public fears are most roused. Klug believes that had the world not shifted on its axis after 9/11,

then the HRA may well have proved less controversial and been more owned.108 Nonetheless

it is argued that, whether warranted or not, the current climate of disrespect created by political

hostility and heightened by the media will be difficult to undo.109

The more exclusive cause of this public ownership issue however is claimed to be the Act’s

lack of British-ness in this typically nationalist state. It can be argued that this is mainly

attributable to Euroscepticism. The fact that the Act is externally linked by the ECHR to the

ECtHR, where British courts must ‘take into account’ Strasbourg’s sometimes creative

jurisprudence,110 results in ‘people often feeling alienated from a system seen as European and

not British’.111 Sells QC states that this ‘was never going to be popular’.112 People clearly see

the protections of the HRA as ‘Convention rights’ rather than constitutional rights. This has

meant that the Act is seen as an ‘alien import’113 which has not become an embedded part of

our national identity.

Elliot goes further and suggests a much wider underlying problem; an antipathy towards the

universal nature of human rights.114 This is illuminated by the general resentment towards the

Act’s unfortunate association with prioritising the rights of the claimed ‘underserving’ over the

105 DCA (n 101). 106 J Slack, ‘I Want to Scrap the Human Rights Act but Nick Clegg Won’t Let Me’ Daily Mail (3 October 2011)

< http://www.dailymail.co.uk/news/article-2044530/David-Cameron-I-want-scrap-Human-Rights-Act-Nick-

Clegg-wont-let-me.html > Accessed October 2013. 107 See below Chapter 3.2 A Transfer of Power. 108 Klug (n 96). 109 Amos (n 77). 110 HRA, s 2; See below Chapter 3.3 ‘Argentoratum locutum, iudicium finitum’- ‘Strasbourg has spoken, the

case is closed’. 111 HL Deb, 20 June 2013, vol 746, col 445. 112 The Commission’s Report (n 85) 144. 113 Political and Constitutional Reform Committee, Minutes of Evidence UK Bill of Rights Commission (16

June 2011) < http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpolcon/1049/11061601.htm >

Accessed 22 March 2014, (Martin Howe), answers to Q77 & 80. 114 Elliot (n 90).

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interests of the wider community.115 Again this comes down to a lack of understanding of

human rights.

What is clear at this stage is that assessed against the symbolic nature of a BoR,116 the HRA

has ‘failed to pass muster’.117 Its real potential of promoting and embedding human rights, as

Khan states, has not been realised.118

3.2 A Transfer of Power

At the centre of criticism of the HRA is that it has been the catalyst of an unprecedented

constitutional transfer of power within the UK, from the executive and the legislature to the

judiciary.119 Some clarity is needed here. This is not a criticism of the court’s overall power to

review government’s general actions, which is generally accepted as necessary in a modern

society governed by the rule of law.120 But the perception has arisen that the courts are now

somewhat overstepping the mark of their new power,121 and moving into the forum of the

legislature.122 Laws LJ echoes a widely held view that there is ‘an important difference between

the protection of fundamental rights and the formulation of state policy… the former is the

business of the courts, the latter is the business of government.’123 He continues ‘The challenge

of our human rights law is that it appears to merge these ideas.’

The most often cited evidence of this is within areas where judges, due to their powers and the

vague and broadly defined HRA rights,124 inquire into the appropriate balance between an

individual’s rights and the conflicting public interest.125 There are those that assert that judges

115 Kaur-Ballagan K, Castell S, Brough K and Friemert H, Public Perceptions of Human Rights (Equality and

Human Rights Commission, June 2009) < http://www.equalityhumanrights.com/human-rights/our-human-

rights-work/human-rights-inquiries/our-human-rights-inquiry/ > Accessed 25 March 3014. 116 See Chapter 1.3.2 More than just a legal document. 117 Klug (n 96). 118 Khan (n 79) 106. 119 A Kavanagh, Constitutional Review under the UK Human Rights Act (CUP, Cambridge 2009), 2. 120 Lord Neuberger of Abbotsbury, ‘Who Are the Masters Now?’ (The Second Lord Alexander of Weedon

Lecture, 6 April 2011) < http://www.judiciary.gov.uk/NR/rdonlyres/F402769A-196C-47E3-B5D9-

AAA1EEE096F3/0/mrspeechweedonlecture110406.pdf > Accessed 11 October 2013. 121 Mark Elliot, ‘Law, Rights, and Constitutional Politics’, Legal Studies Research Paper Series, December

2013, Paper NO. 55/2013, available at < http://www.law.cam.ac.uk/ssrn/ > Accessed January 15 2014. 122 O’Cinneide C, Human Rights and the UK Constitution (British Academy Policy Centre, 2011). 123 Lord Justice Laws, ‘Lecture III: The Common Law and Europe’ (Hamlyn Lectures 27 November 2013) <

www.Judiciary.gov.uk > Accessed January 2 2014, p.12. 124 HRA, s 1. 125 Cameron (n 80).

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have undesirably balanced126 these inquiries in favour of foreign terrorists or asylum seekers

claiming the right to family life (Article 8127) in deportation cases for example;128 subsequently

undermining the immigration system. In 2011-12 alone, 177 foreign criminals avoided

deportation after citing Article 8.129

Although judicial decisions which fail to align with the thinking of the moral majority are not

illegitimate,130 politicians claim that the Act has had a ‘damaging impact on our ability to

protect society against terrorism’.131 Some believe that such actions are out of sync with

British132 and other state traditions of governance. France, also a party to the ECHR, has been

able to deal with such threats more robustly; the French judiciary being reluctant to overturn

their government’s deportation decisions.133 Pinto Duschinsky says that it is dangerous to

permit judges to become ‘politicians in robes’.134

Criticism is further directed at the interpretative provision of s.3(1) where the courts interpret

Parliament’s legislation, ‘as far as it is possible’, in a way that is Convention compatible. 135

Lord Nicholls has questioned to what criterion is ‘possible’ judged? To which he states that a

definitive answer is allusive.136 This ambiguity in the Acts wording is claimed to have given

judges power to abandon the original meaning of legislation and supplement a different

126 Charles Clarke, Speech to Heritage Foundation (Washington DC, October 2005) <

http://charlesclarke.org/archives/category/speeches/page/10 > Accessed 9 March 2014 ‘The right to be protected

from the death and destruction caused by indiscriminate terrorism is at least as important the right of the terrorist

to be protected from torture and ill treatment’. 127 HRA, Art 8. 128 EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198. 129 BBC, ‘Theresa May criticises judges for ignoring deportation law’ BBC News (16th February 2013) <

http://www.bbc.co.uk/news/uk-21489072 > Accessed 11th February 2013. 130 Mark Elliot, ‘A human rights reality check for the Home Secretary’ (UK human rights blog February 13

2013) < http://ukhumanrightsblog.com/2013/02/18/a-human-rights-reality-check-for-the-home-secretary-dr-

mark-elliott/ > Accessed 15 October 2013. 131 Cameron (n 80). 132 C O’Cinneide, ‘Human rights law in the UK - is there a need for fundamental reform?’ [2012]

E.H.R.L.R. 6, 595. 133 F Foley, Countering Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past (CUP

2013). 134 Pinto-Duschinsky M, Bringing Rights Back Home: Making human rights compatible with parliamentary

democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk > Accessed September

20 2013. 135 HRA, s 3(1) ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and

given effect in a way which is compatible with the Convention rights’. 1 Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 [27] (Nicholls L) ‘[S]ection 3 itself is not free

from ambiguity. The difficulty lies in the word ‘possible’....What is not clear is the test to be applied in

separating the sheep from the goats. What is the standard, or the criterion, by which ‘possibility’ is to be

judged?’.

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(although supposed ‘rights–compatible’) meaning from that which Parliament intended.137

Masterman argues that the scope for judicial discretion is potentially enormous.138

Some argue that s.3(1) exacerbates the claimed undemocratic judicial activism because this

power, can only be wielded with reference to judge’s personal views on social or moral issues

pertinent to Convention rights,139 constructing an illegitimate invention of what most

meritorious policy Parliament should follow.140 In doing this, fewer cases result in a declaration

of incompatibility.141 This takes the choice of whether to retain ECHR inconsistent law or

amend it, away from Parliament;142 something which Baroness Hale doubts Parliament

intended when enacting s 3(1).143 Lord Steyn has highlighted that Parliament can in theory reply

by amending the legislation, overruling the interpretation144 and indeed there is a limitation in

s.3 (2)(b).145 Yet knowing that the HRA’s legal bite comes from a likely subsequent case to

Strasbourg where the UK is bound in international law, disregards the likelihood of such an

amendment.

Some go as far in suggesting that the courts possess greater power than under traditional BoR

models; instead of striking down legislation, they are rewriting and remolding it to be compliant

with their own construction of human rights.146

3.3 ‘Argentoratum locutum, iudicium finitum’- ‘Strasbourg has spoken, the case is closed’147

Arguably the most dominant criticism of the HRA is that it has helped facilitate a further

transfer of power; from the UK (domestic courts) to Europe (the ECtHR). It is submitted by

137 Justice Dyson Heydon, ‘Are Bills of Rights Necessary in Common Law Systems?’ (Inner Temple Reader’s

Lecture Series, 21st January 2013) < http://www.innertemplelibrary.com/2013/03/are-bills-of-rights-necessary-

in-common-law-systems-justice-dyson-heydon-ac/ > Accessed October 2013. 138 I Leigh and R Masterman, Making Rights Real: the Enforcement of the Human Rights Act (Oxford: Hart

Publishing, 2007) 123. See Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC

440, concerning control orders. 139 ibid. 140 Jonathan Sumption Q.C, ‘Judicial and Political Decision Making: The Uncertain Boundary’ (F.A. Mann

lecture for 2011) < http://www.theguardian.com/law/interactive/2011/nov/09/jonathan-sumption-speech-

politicisation-judges > Accessed March 2013. 141 HRA, s 4. 142 HRA s 10. 143 B Hale, ‘High Points and Low Points in the First Ten Year: A View from the Bench’ in Kang-Riou N,

Confronting the Human Rights Act 1998: Contemporary themes and perspectives (Routledge 2012). 144 Ghaidan (n 136) [63] (Steyn L). 145 HRA, s 3 (2)(b),‘This section [Section 3] does not affect the validity, continuing operation or enforcement of

any incompatible primary legislation’. 146 Heydon (n 137). 147 AF v Secretary of State for the Home Department (No 3) [2009] UKHL 28, [2009] 3 WLR 74 [98].

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opponents that the Act has linked UK law too closely to Strasbourg’s creative jurisprudence

through s.2(1).148

Much controversy has surrounded the supposed simple language149 of s.2(1) and the appropriate

weight placed on the further requirement on domestic courts to ‘take account’ of Strasbourg

jurisprudence when applying the Convention. 150 An initial intention of the HRA was to allow

domestic judges to make a distinctively British contribution to UK human rights law.151 This

unfortunately has not materialised. S.2(1) has been rapidly transformed by the judiciary to

mean that domestic courts are ultimately bound to follow ECtHR case law. This is inconsistent

with Parliamentary intentions.152

Originating in R(Alconbury),153 and confirmed in Ullah,154 this obligation is known as the

‘mirror’ or ‘Ullah’ principle. UK human rights law should, in its scope, ‘mirror’ its Strasbourg

equivalent; an approach which has persevered.155 Many have claimed that this represents a

‘wrong turning’ in UK law however,156 partly because some ECtHR decisions are seen as

wrong and insensitive to domestic ideas and undermine ‘the autonomous development of

human rights law’ by UK courts.157 Cases such as Gillan158 and AF (No 3)159 evidence this. Lord

Hoffman in the latter believed the ECtHR’s160 decision to be damaging to our national

interest.161 There have been situations when the courts have departed from Strasbourg’s case

148 HRA, s 2; O’Cinneide ‘Fundamental Reform?’ (n 132). 149 Lord Irvine, ‘A British Interpretation of Convention Rights’ (Bingham Centre for the Rule of Law Lecture

Hosted by UCL Judicial Institute 2011) < www.ucl.ac.uk > Accessed October 2013. 150 HRA, s 2(1) ‘A court or tribunal determining a question which has arisen in connection with a convention

right must take into account any… (A) Judgement, decision, declaration or advisory opinion of the ECtHR’. 151 HL Deb, 3 November 1997, vol 582 col 1227. 152 HL Deb, 5 February 1998, vol 585, col 755; HL Deb, 3 November 1997 vol 582, col 1228; HL Deb 8

November 1997 vol 583, cols 511-515, vol 584, cols 1270-1271. See also Rights Brought Home: Human Rights

Bill HL (1997 -98) 119. [1.14], [2.4], [2.5]; HL Deb, 18 November 1998, vol 594 Cols 514-515 (Irvine L). 153 R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and

the Regions [2001] UKHL 23, [2003] 2 AC 295 [26] (Lord Slyn). 154 R v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant) [2004] UKHL 26, [2004] 2 AC 323

[20] (Lord Bingham). 155 Pinnock v Manchester City Council [2010] UKSC 45 [2010] 3 WLR 1441; See also Kay v Lambeth LBC [2006]

2 AC 465; Doherty v Birmingham City Council [2009] 1 AC 367; Kay v United Kingdom (37341/06) [2011] HLR

2; B and another v Secretary of State for Justice [2011] EWCA Civ 1608, [2012] 1 W.L.R. 2043; R (Chester) v

Secretary of State for Justice [2013] UKSC 63, [2013] 3 W.L.R. 1076. 156 Lord Justice Laws (n 123). 157 ibid. 158 Gillan and Quinton v UK (4158/05) (2010) 50 EHRR 45. 159 AF (n 147). 160 A v United Kingdom (2009) 49 EHRR 625. 161 AF (n 147) [70] ‘I think that the decision of the ECtHR was wrong and that it may well destroy the system of

control orders which is a significant part of this country's defences against terrorism’.

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law,162 but such a departure is only justified in exceptional circumstances, and thus strictly

limited. Lord Irvine stated that the court must have a choice on whether to give effect to their

judgements.163 In practice this choice appears to be absent. A substantial argument advocated

is that UK judges constantly have one eye on not placing the UK in breach of its international

obligations164 as was expressed by Lord Hoffman in AF165 and recently by Lord Sumption in

Chester.166 Lord Irvine and Laws LJ both agree that it is not for judges to consider international

relations and foreign policy and this should certainly not justify discharging their constitutional

duty.167

Thus many have called for the ‘Ullah’ principle to be revisited in order to allow a ‘home grown’

jurisprudence to develop168 and for the Supreme court to be ‘Supreme’.169 Lord Kerr captures

this attitude, stating ‘“Argentoratum locutum, nunc est nobis loquendum” – Strasbourg has

spoken, now it is our time to speak’.170 This is so especially considering that this principle can

be linked with the HRA and the Convention being seen as alien influences.171

For various politicians, lawyers and even judges this transfer of power is particularly

problematic as they believe that the ECtHR has overreached itself in its interpretations.172

Strasbourg, since the case of Tyrer,173 has developed the ‘living instrument’ approach. This

involves interpreting the Convention in light of contemporary social and moral attitudes across

Europe,174 so as to keep it relevant. Although desirable on the face of it, it is argued that this

162 R v Horncastle and Others [2009] UKSC 14; Al-Khawaja & Tahery v United Kingdom (2012) 54 EHRR 23;

R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport

[2008] UKHL 15, [2008] 1 AC 1312; Austin v United Kingdom (2012) 55 EHRR 14. See also R Masterman,

‘The Mirror Crack’d’ (UK Const. L. Blog 2013) < http://ukconstitutionallaw.org > Accessed January 2013. 163 Lord Irvine (n 149). 164 ECHR Art 46 (1) ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any

case to which they are parties’; See recently Del Rio Prada v Spain [2013] ECHR 307. 165 AF (n 147). 166 R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2013] 3 W.L.R. 1076. 167 Lord Irvine (n 147). 168 O’Cinneide ‘Fundamental Reform?’ (n 132). 169 O Bowcott, ‘European court is not superior to UK supreme court, says Lord Judge’ The Guardian, (4 th

December 2013) < http://www.theguardian.com/law/2013/dec/04/european-court-uk-supreme-lord-judge >

Accessed 16 February 2014. 170 Lord Kerr, ‘The UK Supreme Court: The Modest Underworker of Strasbourg?’ (Clifford Chance Lecture,

25th January 2012) < http://www.supremecourt.gov.uk/docs/speech_120125.pdf >Accessed 15 February 2014. 171 R Masterman, ‘Deconstructing the Mirror Principle’ in R Masterman & I Leigh (eds), The United Kingdom's

Statutory Bill of Rights: Constitutional and Comparative Perspectives (OUP/British Academy 2013); See

Chapter 3.1 The ‘Ownership’ Issue. 172 Lord Sumption, ‘The Limits of Law’ (27th Sultan Azlan Shah Lecture, Kuala Lumpur 20 November 2013) <

http://supremecourt.uk/news/speeches.html > Accessed 20 January 2014; for the original interpretative

guidelines of the ECtHR see the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into

force 27 January 1980) 1555 UNTS 331, Art 31-33. 173 Tyrer v UK [1979-80] 2 EHRR 1. 174 Goodwin v UK (2002) 35 EHRR 447.

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has allowed the court to expand its jurisdiction into the making of political decisions.175 This

expansionist approach has led to claims that the margin of appreciation (the courts recognition

that the Convention will be interpreted differently in Member States176) is being applied too

narrowly and that Strasbourg is micromanaging Member States.177 This is evidenced in various

cases,178 none more so than the ongoing Hirst saga where the UK, in defiance of Strasbourg,

has continued to refuse prisoners the right to vote.179

UK Judges submit that there cannot be a ‘single correct interpretation, a universal jurisprudence

across the boundaries of signatory states’180 and that human rights instead are universal in

abstraction but national in application.181 Neuberger offers some reasoning by asserting that the

British are peculiarly averse to ‘being told what they can and can’t do by pan-European

bodies’,182 especially when as he highlights, the Convention does not loom so large in the

German written constitution for example.183

Even proponents of the court are worried by the limits of the ‘living instrument’.184 By overly

expanding the Conventions meaning there is a risk of trivialising and thus discrediting rights.

Laws LJ states ‘We are entitled to think that human rights are like the human heart; the bigger

they get, the weaker they get’.185

In fact there are those that believe a reason for British courts overstepping the mark is because

they are following Strasbourg’s attitude of rights interpretation, something which Raab calls

‘rights contagion’.186

175 Jonathan Fisher QC, Rescuing Human Rights (The Henry Jackson Society 2012). 176 Buckley v UK (1996) 23 EHRR 101 [75]; See also D Popovic, The Emergence of the European Human

Rights Law: An Essay on Judicial Creativity (Eleven International Publishing 2011). 177 Lord Hoffman, ‘The universality of human rights’ (2009) 125 LQR 416. 178 S and Marper v United Kingdom (2009) 48 EHRR 50; Redfearn v. United Kingdom [2012] ECHR 1878;

Vinter and Others v UK (9 July 2013 ECHR). 179 The Representation of the People Act 1983, s 3; Hirst v the United Kingdom (No 2) [2005] ECHR 681;

Scoppola v Italy (No 3) [2012] ECHR 868; See also R (Chester) (n 166), McGeoch (AP) (Appellant) v The Lord

President of the Council and another (Respondents) (Scotland) [2013] UKSC 63. 180 Lord Justice Laws (n 123). 181 Lord Hoffman (n 176). 182 Lord Neuberger, The British and Europe, (Cambridge Freshfields Annual Law Lecture 12 February 2014) <

http://supremecourt.uk/news/speeches.html > Accessed 18 February 2014. 183 ibid. 184 Lady Hale, ‘Beanstalk or living instrument, how tall can the ECHR grow?’ (Barnard Inn Reading 16th June

2011) < http://supremecourt.uk/news/speeches.html > Accessed July 2013. 185 Lord Justice Laws (n 123). 186 D Raab, The Assault on Liberty: What went wrong with Rights? (Fourth Estate 2009).

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Final Thoughts

From these highlighted criticisms of the HRA and the Convention system it is evident that a

future alteration of UK human rights law is inevitable and imperative.187 Despite the substantial

positive effect the HRA has had on areas of UK law,188 it cannot be doubted that the Act has

failed to capture public imagination and fulfil the requirements of a BoR. As Harvey states the

HRA is seen as ‘simply another Act of Parliament, no more and no less’.189 It has also been a

catalyst for a claimed problematic transfer of power from Parliament to the judiciary190 and

then to Europe, which has seen a shift towards legal constitutionalism. Although the issues

shown are distinct, there is a clear interlinking relationship between them which appears to put

the Strasbourg court squarely in the spotlight.

It is argued then that only significant constitutional change in the form of altering the

relationship between the UK and the Convention regime would allow a BoR to address these

issues191. The chameleonic nature of the Commission’s report and the lack of any consensus

meant there was no concrete UK BoR model put forward.

Many believe, including senior Conservatives192 and even some members of the Commission,

that human rights in the UK would be better served by complete withdrawal from the

Convention and enactment of a BoR.193 Thus a BoR would be utilised to weaken the ties to

Strasbourg and increase parliamentary autonomy in human rights matters.194 The possibility of

this option must then be considered. The Commission failed to address this, mainly because it

187 Lord Anthony Lester, ‘An Personal Explanatory Note’ in Commission on a Bill of Rights, A UK Bill of

Rights: The Choice Before Us (18 December 2012,Vol 1) < http://www.justice.gov.uk/about/cbr > Accessed 2

January 2013. 188 DCA (n 101). 189 Harvey (n 97). 190 Sumption Q.C (n 140). 191 Elliot ‘Constitutional Politics’ (n 121). 192 M Elliot, ‘Theresa May and Chris Grayling on human rights’ (Public Law for Everyone, 30 September 2013)

< http://publiclawforeveryone.wordpress.com/2013/09/30/theresa-may-and-chris-grayling-on-human-rights/ >

Accessed 10 October 2013. See for an overview, H Fenwick, ‘Replacing the HRA with a Bill of Rights in N

Kang-Riou, Confronting the Human Rights Act 1998: Contemporary Themes and Perspectives (Routledge

2012). 193 See Lord Faulks QC & J Fisher QC, ‘Unfinished Business’ in Commission on a Bill of Rights, ‘A UK Bill of

Rights: The Choice before us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2

January 2013. 194 H Fenwick, ‘Replacing the HRA with a Bill of Rights’ in N Kang-Riou, Confronting the Human Rights Act

1998: Contemporary Themes and Perspectives (Routledge 2012) 293.

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was required not to deviate from the ECHR in any way, but also because of reluctant

commissioners.195

Although it could be argued that the Commission’s rebranding proposal for a BoR196 is likely

to have little to no effect considering the stated problems,197 it is still necessary to also consider

such a model as it is possible that it could provide a workable solution. For instance, a British

infused BoR, with ‘language reflecting our own heritage and tradition’ could in part address

the ownership issue. While a BoR could also potentially place the UK securely within the

margin of appreciation and, by analogy to the Grundgesetz in Germany,198 result in a more

lenient approach from Strasbourg due to a specific constitutional rights document within the

UK.199 This could be coupled with possible altered versions of HRA sections200 and allow a

slightly different balance to be struck between individual rights and the public interest.201

The next two chapters will look then to consider the possibility of these two very different

potential avenues for a UK BoR, by analysing whether specific fundamental factors could

undermine the possibility and effectiveness of the two models. Firstly, would a somewhat

Conservative UK BoR decoupled from the ECHR be possible or have the desired effect, when

considering the legal and political implications of the European legal landscape? Secondly,

would the Commission’s British rebranded UK BoR be able to sufficiently address the

‘ownership’ issue, considering the legal and political implications of devolution in the UK?

195 P Sands & H Kennedy, ‘In Defence of Rights’ in Commission on a Bill of Rights, ‘A UK Bill of Rights: The

Choice before us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013. 196 Wagner ‘A Modest Proposal’ (n 89). 197 Elliot ‘Damp Squib’ (n 90). 198 The Basic Law for the Federal Republic of Germany 1949. 199 Cameron (n 80). 200 HRA, ss 2 & 3. 201 Commission on a Bill of Rights, A UK Bill of Rights: The Choice Before Us (18 December 2012,Vol 1) <

http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, para 12.9.

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CHAPTER 4

Denunciation and EU Law

Despite being part of the impetus for the establishment of the Commission, their report failed

to address the ‘elephant in the room’;202 the possibility of a UK without the ECHR. For many,

this was a missed opportunity and even led to some Commissioners stating that there was thus

‘unfinished business’.203

In this context less dramatic change, which attempted to alter the relationship between

Strasbourg and the UK by placing greater emphasis on the margin of appreciation and

subsidiarity, was pursued by the Government.204 The reality of their watered down effect

however is generally seen as failing to satisfy the need for change wanted by opponents of

Strasbourg205 and any significant reform of the court now appears to be distant.

The purpose of this chapter then is to analyse the possibility of the ‘nuclear option’ of

withdrawing from the ECHR.206 Specific attention will first be drawn to the Charter of

202 Elliot ‘Damp Squib’ (n 90). 203 Lord Faulks QC & J Fisher QC, ‘Unfinished Business’ in Commission on a Bill of Rights, A UK Bill of

Rights: The Choice before us 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2

January 2013. 204 See the Interlaken Declaration adopted on 19th February 2010; The Izmir Declaration adopted on 27th April

2011; The Brighton Declaration adopted 20th April 2012. 205 M Elliot, ‘Mark Elliott: The Brighton Declaration: where now for the Human Rights Act and the Bill of

Rights debate?’ (UK Const. L. Blog 25 April 2012) < http://ukconstitutionallaw.org/2012/04/25/mark-elliott-

the-brighton-declaration-where-now-for-the-human-rights-act-and-the-bill-of-rights-debate/. > Accessed

January 2013. 206 A Travis ‘Conservatives Promise to Scrap Human Rights Act After Next Election’ The Guardian 30

September 2013) < http://www.theguardian.com/law/2013/sep/30/conservitives-scrap-human-rights-act >

Accessed 2 November 2013 ; See also, Press Association, ‘Cameron: I'd withdraw from human rights

convention to keep UK safe' The Guardian ( 29 September 2013) <

http://www.theguardian.com/politics/2013/sep/29/david-cameron-human-rights-convention > Accessed 12

February 2014; M. Pinto-Duschinsky, Bringing Rights Back Home: Making Human Rights Compatible with

Parliamentary Democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk >

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Fundamental Rights207 and what effect its new found legal status would have on an ECHR-less

BoR ability to release the UK from its international obligations.208 It will then be assessed

whether complete withdrawal from the Convention is realistically possible. Thought will be

given to the various legal and political considerations, especially regarding membership of the

EU and CoE, in addition to the Treaty of Lisbon’s209 other important legal changes.

4.1. The effect of the Charter and EU Law

The Charter of Fundamental Rights of the European Union (the Charter),210 proclaimed in Nice

in 2000, is an EU piece of legislation which has consolidated and codified existing EU sources

to create a free standing instrument of rights within the EU.211 Innovative in nature, the charter

contains extensive economic and social rights alongside the more traditional civil and political

rights contained in the ECHR. Moreover it also codifies modern third generation rights such as

the right to a clean environment.212

The Charter has now gained the same legal status and power as the EU treaties via s.6 (1) TEU,

213 as amended by the Lisbon Treaty and is thus binding on Member States (UK) when

implementing EU law.214 The Court of Justice of the European Union (CJEU), the Charters

adjudicator, has evidenced this through its increased use of the Charter to enforce fundamental

rights since 2009.215 The UK is thus bound by the charter when acting in the scope of EU law.

Accessed September 20 2013; Joint Committee on Human Rights, Draft Report: Why the Human Rights Act

must be Scrapped (32nd Report, Formal Minutes, 7 November 2006) <

http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/278/27811.htm > Accessed 21 March 2014. 207 Charter of Fundamental Rights of the European Union [2000] OJ C 364/01, [2010] OJ C 83/389 (The

Charter). 208 ECHR, Art 46. 209 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European

Community [2007] OJ C 306/01 (Lisbon Treaty). 210 The Charter (n 206). 211 S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11 (4) HRLR

645-682. 212 The Charter, Art 37. 213 Consolidated version of the Treaty on European Union [2012] OJ C 326 (TEU), Art 6(1) ‘The same legal

value as the Treaties’. 214 The Charter, s 51(1). 215 G De Burca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights

Adjudicator?’ (2013) 2 20 Maastricht Journal of European and Comparative Law 168.

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Although there was initially some confusion216 as to whether the UK was subject to the Charter

due to Protocol 30 to the Lisbon Treaty,217 the CJEU218 and UK courts have now clarified that

the Charter does in fact extend to the UK.219

After analysing the preamble to the Protocol, they concluded that ‘Article 1(1) of Protocol No

30 explains Article 51 of the Charter with regard to the scope thereof and does not…exempt

the… UK from the obligation to comply with the… Charter’.220 The Protocol, strictly

interpreted,221 clarifies only that the Charter does not ‘extend’ the competence of the CJEU or

UK courts. This however does not limit their existing competencies of reviewing national law

against the fundamental rights that the Charter clearly ‘reaffirms’.222 Where the Protocol does

appear to have teeth is in limiting, via Article 1(2), the justiciability of extensive social and

economic rights223 in the UK, where there has been a history of skepticism over such rights.224

The relevance of this to the current argument starts with s.52 (3).225 This states that any rights

which the ‘Charter contains… which correspond226 to rights guaranteed by the Convention,227

216 See HC Deb 25 June 2007, cols 37, 39 (Tony Blair); See also R Mason, ‘Chris Grayling Seeks Legal

Clarification over EU Charter of Fundamental Rights’ The Guardian (19 November 2013) <

http://www.theguardian.com/politics/2013/nov/19/chris-grayling-clarification-eu-charter-rights > Accessed

December 20 2013. 217 Protocol No 30 to the Lisbon Treaty on the Application of the Charter of Fundamental Rights of the

European Union to Poland and the United Kingdom [2010] OJ C 83/313, Art 1(1) ‘The Charter does not extend

the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United

Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the

United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

(2). In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights

applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for

such rights in its national law.’ 218 Cases C-411/10 and C-493/10 NS v Secretary of State for the Home Department and ME et al v Refugee

Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ECR I, [2012] 3 WLR

1374, paras [116 -122]. 219 R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (QB) [14-15]. 220 NS (n 217) para 120. 221 Case C-150/99 Sweden v Stockholm Lindopark AB [2001] ECR I-493, para 25. 222 D Anderson Q.C & Cian C. Murphy, ‘The Charter of Fundamental Rights: History and Prospects in Post-

Lisbon Europe, (2011) Cadmus EUI Research Depository, EUI Working Paper LAW 2011/08, available at <

http://cadmus.eui.eu/handle/1814/17597 > Accessed 28 December 2013. 223 The Charter, Title IV. 224 Ministry of Justice, Rights and Responsibilities: Developing Our Constitutional Framework, (Cm 7577,

2009) para. 3.52. 225 The Charter, s.52(3), ‘In so far as this Charter contains rights which correspond to rights guaranteed by the

Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those

rights shall be the same as those laid down by the said Convention’. 226 A list of corresponding rights are clearly stated in the Explanations relating to the Charter of Fundamental

Rights [2007] OJ C 303/17; the right to life, the prohibition of torture, the prohibition on slavery and forced

labour, the right to liberty and security, respect for private and family life, freedom of thought, conscience and

religion, freedom of expression and information, freedom of assembly and association, right to property,

protection in the event of removal, expulsion or extradition, and the presumption of innocence and right of

defence, have the same meaning and scope as the corresponding Articles of the ECHR. 227 ECHR.

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the meaning and scope of those rights shall be the same’ as those protected under the

Convention. Such a provision ensures the absence of two differing human rights standards,

setting the ECHR as the minimum human rights protection within the EU.228 Indeed, the CJEU

itself has stressed the equivalence of the two instruments.229

S.52 (3) makes no express reference to the ECtHR. However, as shown below, Strasbourg is

integral to the ECHR;230 its living instrument approach has shaped the Convention. It can be

argued that the ECtHR’s case law has simultaneously been incorporated into EU law,231 its

authoritative interpretations would form part of the meaning and scope of corresponding rights

in the Charter.232

This is consistent with the preamble to the Charter, ‘The Charter reaffirms…. The rights as

they result, in particular, from… the case law of the… ECtHR’233 and is confirmed in the

Explanations on Article 52,234 which state that Charter rights are also ‘[D]etermined by... the

case-law of the ECtHR’. Subsequently, when interpreting the scope of corresponding Charter

rights, the CJEU is in theory bound by the Convention and its interpretation by the ECtHR.

Lock in his article does argue that due to the wording of s.52(7),235 the CJEU only has to ‘duly

regard’ the ECtHR’s interpretations.236 Theoretically the CJEU is not formally a subordinate to

the ECtHR, instead their relationship can be seen as one of judicial dialogue.237 However Art.

6(1) TEU places significant authority on the explanations.238 Moreover the CJEU has evidenced

228 Tobias Lock, ‘The ECJ and the ECtHR: The Future Relationship Between the Two European Courts’ (2009)

The Law and Practice of International Courts and Tribunals 8, 375–398. 229 Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen

[2010] ECR I- 11063, [2012] All E.R. (EC) 127; See also R (Zagorski and Baze) v Secretary of State for

Business, Innovation and Skills [2010] EWHC 3110 (QB) [73]. 230 See Chapter 4.2 Withdrawing from the ECHR: The Possibility and its Consequences. 231 Weiss, ‘Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights After

Lisbon’ (2011) 7 (1) European Constitutional Law Review 64. 232 Koen Lenaerts and Eddy de Smijter, ‘The Charter and the Role of the European Courts’, 8 Maastricht Journal

of European Law (2001) 90, 99; The Charter, S.52 (3). 233 The Charter. 234 Explanations relating to the Charter of Fundamental Rights [2007] OJ C 303/17, Explanations on Article 52

– Scope and interpretation of rights and principles. 235 The Charter, S.52 (7) ‘The Explanations… shall be given due regard by the courts of the Union and of the

Member States’. 236 Lock (n 227). 237 S Morano-Foadi, ‘Fundamental Rights in Europe: Constitutional dialogue between the Court of Justice of the

EU and the European Court of Human Rights’ (2013) 5(1) Sortuz, Oñati Journal of Emergent Socio – Legal

Studies 64-87. 238 TEU Art 6 (1) ‘The rights, freedoms and principles in the Charter shall be interpreted in accordance with the

general provisions in Title VII of the Charter governing its interpretation and application’.

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its adherence.239 In J.McB. v L.E240 the court held that it should follow the clear and consistent

jurisprudence of the ECtHR while Luxembourg judges in turn have admitted that the final word

lies with Strasbourg.241 This relationship where ‘the (CJEU) slavishly follows the case law of

the ECtHR’,242 will however be reinforced by a monist quasi - federal approach once the EU

accedes to the Convention.243

The UK would thus still be bound by the ECtHR’s expansive and problematic interpretations

of the meaning of, and the required balance between, Convention rights, indirectly through the

Charter absorbing Convention rights into EU law.

Any effect of withdrawal from the Convention, repealing of the HRA and introduction of a

BoR, would be limited; the ECHR and Strasbourg would still ‘rule from the grave’244 indirectly

through the Charters parallel relationship with the ECHR.

The real major impact of this is realised by the fact that the Charter, by virtue of being EU law,

gives the ECHR’s rights interpretations and thus Strasbourg’s jurisprudence, primary law

status. EU primary law is given direct effect under the ECA245 and is supreme over national

conflicting law.246 The UK would be obliged to accept, as with the CJEU’s judgements,247

Strasbourg’s rulings. As Lord Denning (referring to EU law) once stated, ‘it flows into the

estuaries and up the rivers, it cannot be held back.’248 Not only would the Convention system

still loom over the UK, its application within the domestic legal order is then significantly

strengthened beyond the HRA’s capabilities.249 This was recently evidenced when UK courts

239 Case C – 279/09 DEB Deutsche Energiehandels and Beratungsgesellschaft mbH v. Bundesrepublik

Deutschland [2010] ECR I-13849, [2011] 2 C.M.L.R. 21 para 37. 240 Case C-400/10 JMcB v LE [2010] ECR I-8965, [2011] 3 WLR 699, para 53. 241 Morano-Foadi (n 236) 79. 242 D Chalmers & others, European Union Law: Cases, and Materials (CUP 2nd ed. 2010) 261. 243 See 4.2.3 The EU’s accession to the ECHR. 244 R English ‘Watch that Charter’ (UK Human Rights Blog 8 November 2013) <

http://ukhumanrightsblog.com/2013/11/08/watch-that-charter/ > Accessed 10 November 2013. A view similarly

expressed in R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (QB), para [14] (Mostyn

J). 245 European Communities Act 1972; See also Case 26/62 Van Gend en Loos v Nederlandse Administratie der

Belastingen [1963] ECR 1, [1970] C.M.L.R. 1. 246 R (Factortame Ltd) v Secretary of State for Transport (No 2) [1992] 1 AC 603; See also Case 6/64 Costa v

Enel [1964] ECR 585 [1968] C.M.L.R. 267; See also Weiss (n 232) 64 & 71. 247 European Communities Act 1972, s 3(1). 248 HP Bulmer Ltd & Anor v. J. Bollinger SA & Ors [1974] EWCA Civ 14, [1974] 2 All ER 1226. 249 HRA, s 3(2)(b) & (c), s.4.

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disapplied provisions of the State Immunity Act250 which were contrary to Article 47 of the

Charter,251 allowing two Moroccan women the right to a fair hearing.252

The effect of the Charter is however limited because it is restricted to when a Member State

‘implements Union law.’253 Nonetheless, what this entails is continuously broadening, now

covering when member states ‘act in the scope of Union law’254 which will include the UK

merely derogating from EU law255 or even deciding on an application under EU Regulations.256

The scope of EU law does not include all matters, for example issues relating to the criminal

justice system but can cover sensitive matters such as immigration and asylum, and it is

increasingly difficult to find areas where Union law is totally absent.257

The Charter’s increasing significant effect will thus clearly reduce the effectiveness of any

future ECHR-less BoR and dash any hope of a UK free from Strasbourg. Such a BoR could

however still apply in those circumstances which do not relate to EU law. It must still be

assessed whether withdrawing from the Convention is possible.

4.2 Withdrawing From the ECHR: The Possibility and its Consequences

Initially clarity is needed. As this author and others258 have stated, the problem is not the

Convention itself but rather ‘the role of the court in Strasbourg.’259 However, the reason why

(or what this author assumes) calls for withdrawal mainly concern the Convention itself and

250 The State Immunity Act 1978, ss 4 & 16. 251 The Charter, Art 47 ‘Right to an effective remedy and to a fair trial’. 252 Janah v Libya and Benkharbouche v Embassy of the Republic of Sudan UKEAT/0020/13 /GE, October 3

2013 Unreported; See Joshua Rozenberg, ‘Never Mind Human Rights Law, EU Law is Much More Powerful’

The Guardian, (October 9th 2013) < http://www.theguardian.com/law/2013/oct/09/human-rights-eu-law-

powerful > Accessed 10 February 2014. 253 The Charter, Art 51(1). 254 Case C-617/10 Aklagaren v Fransson [2013] ECR I, [2013] 2 CMLR 46, para 20. See also Explanations to

Article 51; Bokel B V, ‘New Wine into Old Wineskins: The Scope of the Charter of Fundamental Rights of the

EU after Akerberg Fransson’ [2013] 38 (6) ELR 866-883. 255 R (on the application of Zagorski) v Secretary of State for Business, Innovation and Skills [2010] EWHC

3110 (QB), [2011] HRLR 6, para 66-77; See also Case C-260/89, ERT v DEP [1991] ECR I-2925, [1994] 4

CMLR 540 paras 42-43. 256 NS (n 217). 257 A Rosas, ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’ [2012] 19(4)

Jurisprudence Research Journal 1269. 258 Lord Dyson, ‘What is wrong with Human rights’ (Hertfordshire University Lecture 3rd November 2011) <

http://supremecourt.uk/news/speeches.html > Accessed December 2012; Lord Hoffman, ‘The Universality of

Human Rights’ (2009) 125 LQR 416; M Elliot, ‘Theresa May and Chris Grayling on human rights’ (Public Law

for Everyone, 30 September 2013) < http://publiclawforeveryone.wordpress.com/2013/09/30/theresa-may-and-

chris-grayling-on-human-rights/ > Accessed 10 October 2013. 259 Lord Dyson, ‘What is wrong with Human rights’ (Hertfordshire University Lecture 3rd November 2011) <

http://supremecourt.uk/news/speeches.html > Accessed December 2012.

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not just Strasbourg, is because the two cannot or should not be separated; they come bound

together. Although the UK’s actions of ratifying the ECHR in 1950, but only allowing petition

to Strasbourg in 1965 suggests otherwise, Protocol 11 of the ECHR260 (signed by the UK in

1994) indicates that undertaking of the jurisdiction of the court is an ‘integral’ part of the

ECHR. 261 Withdrawal from Strasbourg would ultimately entail withdrawal from the ECHR.

Article 58 ECHR262 allows the UK to legally, upon six months’ notice, withdraw from the

Convention. Denunciation of the Convention would almost certainly mean repealing the HRA.

This is due to the fact that the HRA is merely a domestic vehicle for ‘Convention rights’263 and

their interpretations. Ultimately any legal bite that it possesses is via its connection with the

Convention.

However many claim that the reason why withdrawal from the Convention is seen as

impossible, is because it would legally require withdrawal from the Council of Europe (CoE)

and the European Union (EU)264 and would likely result in vast political consequences.

4.2.1. Withdrawal from the Council of Europe?

Searching the Statute of the Council of Europe265 there appears to be no provision which would

force the UK to leave the CoE if it embarked upon withdrawing from the Convention. The

Councils core mission is to promote human rights, democracy and the rule of law across

Europe. Unless however, pursuant to the combined effect of Article 3 and 8 of the Statute, 266

withdrawal from the ECHR by the UK is seen as ‘seriously violating’ the ensuring of

‘enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’,267

it is unlikely that withdrawal from the CoE would be forced via Article 7.268 Given that any

260 Protocol no.11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. 261 Pinto-Duschinsky M, Bringing Rights Back Home: Making human rights compatible with Parliamentary

Democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk > Accessed September

20 2013, 50. 262 ECHR, Art 58. 263 HRA, s 1. 264 N Kang-Riou, Confronting the Human Rights Act 1998: Contemporary Themes and Perspectives (Routledge

2012) 114. 265 The Statute of the Council of Europe 1949 (SCOE). 266 ibid Art 8 ‘Any member of the Council of Europe which has seriously violated Article 3 may be suspended

from its rights of representation and requested….to withdraw’. 267 ibid Art 3. 268 ibid Art 7; See also Pinto-Duschinsky (n 259) 52.

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advocated BoR would most definitely mirror the rights contained in the Convention,269 it is

doubted whether withdrawal would constitute such a breach of Article 3.

On the other hand, it is seen that ratification of the ECHR is a prerequisite to joining the CoE;

currently all 48 member states are party to it. Rabinder Singh QC contends that this prerequisite

implies an obligation on existing states (UK) to do the same.270 This could also be implied from

Jagland’s (Secretary General of the CoE) dismissal of any British renegotiation which would

exclude the right of petition to Strasbourg.271 Recent Parliamentary debate also suggests that

leaving the Convention would result in leaving the CoE.272

Having said this, the Statutes provisions do show that withdrawal would not legally be an issue.

4.2.2. Withdrawal from the EU?

Professor Klug, among others, reiterates a common consensus that you ‘have to ratify the

European Convention on Human Rights to be a member of the EU’.273 Therefore it is claimed

that withdrawal from the ECHR would in theory entail withdrawal from the EU. However, as

Pinto-Duschinsky states, the majority who make such a claim are those who are reluctant to

even consider reform.274 Legal analysis of the EU Treaties is needed if such claims are to be

taken as valid.

The most relevant treaty provision is Article 2 of the Treaty on the European Union [as

amended by the Lisbon Treaty]275 which states that the Union is founded upon ‘values of

respect for human dignity, freedom, democracy, equality, the rule of law and respect for human

rights, including the rights of persons belonging to minorities’.276 Any new applicant state

269 Commission on a Bill of Rights, A UK Bill of Rights: The Choice before us 18 December 2012 Vol. 1 <

http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, paras 12.10 -12.21. 270 Pinto-Duschinsky (n 259). 271 A Travis ‘Defying Strasbourg ruling on prisoner voting rights risks anarchy, MPs told’ The Guardian (6

November 2013) < http://www.theguardian.com/law/2013/nov/06/defying-strasbourg-ruling-prisoner-voting-

anarchy.> Accessed 10 November 2013. 272 V Miller, ‘Is Adherence to the European Convention on Human Rights a Condition of European Union

Membership?’ (House of Commons, International Affairs and Defence Section. 11 march 2013, SN/IA/6577) <

www.parliament.uk > Accessed 28 December 2013. 273 Select Committee on Constitutional Affairs Minutes of Evidence (31 October 2006) <

http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/1703/6103102.htm > Accessed 20

March 2014, (Francesca klug) Q.19. 274 Pinto-Duschinsky (n 259) 54. 275 TEU, Art 2. 276 ibid Art 2 ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality,

the rule of law and respect for human rights, including the rights of persons belonging to minorities. These

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wishing to become a member of the EU, per Art.49 (1), must respect ‘the values referred to in

Article 2 and’ be committed ‘to promoting them.’277 The clearest way to achieve this is to ratify

the ECHR, and indeed the European Commission has itself stated that, ‘Any State wishing to

join the European Union must first have ratified the (ECHR)’.278

However the TEU makes no express mention of such an obligation on existing members or

continued adherence to the ECHR. It could be argued that new members ratify on the

assumption of existing members also being a party, but this would be to read into the Treaty

that which is not there; as Rosalind English states ‘if they had meant to say that, they would

have said it’.279 A possible explanation for the obligation on new members, such as Romania

and Bulgaria is that unlike early members of the EU, they are unlikely to have a tradition of

the rule of law embedded within their constitutions, nor the sufficient human rights record to

satisfy Article 2.280

Bill Cash (European Scrutiny Committee) in 2013 stated that leaving the Convention would

not breach the EU treaties.281 Per Article 7 TEU, finding a ‘serious breach’ of the values in

Article 2 by the UK, would need a vote of a majority of four fifths of the members of the EU

Council, and a unanimous vote by the other EU Member States.282 If, as it would be assumed,

a British BoR containing those ‘fundamental rights’283 with the Supreme Court as its

authority284 replaced the ECHR and Strasbourg, it is unlikely that withdrawal would constitute

such a breach of Article 7.285 If the BoR provided standards as high as those found in the ECHR,

then the wording of Article 6(3) TEU does not seem to require actual adherence to the ECHR.

This assessment of the treaties evidences that withdrawal is unlikely to result in leaving the

EU.

values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice,

solidarity and equality between women and men prevail’. 277 TEU Art 49 (1). 278 European Commission, ‘Opinion on Bulgaria’s Application for Membership of the European Union’

(Opinion) Com (97) 2008 final, 15, 1.2. 279 Rosalind English, ‘It’s time we packed our bags at Strasbourg, says report’ (UK Human Rights Blog 9 th

February 2011) < http://ukhumanrightsblog.com/2011/02/09/its-time-we-packed-our-bags-at-strasbourg-says-

report/ > Accessed 15 March 2014. 280 TEU, Art 2. 281 Miller (271). 282 TEU Art7 (1). 283 The Commission’s Report (n 201). 284 C Hope ‘Britain's Supreme Court will be able to over-rule Strasbourg court, says Chris Grayling’ The

Telegraph, (30 December 2013) < http://www.telegraph.co.uk/news/uknews/law-and-order/10542296/Britains-

supreme-court-will-be-able-to-over-rule-Strasbourg-court-says-Chris-Grayling.html > Accessed 30 December

2013. 285 Jonathan Fisher QC, Rescuing Human Rights (The Henry Jackson Society 2012) 54.

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4.2.3. The EU’s accession to the ECHR

The Lisbon Treaty’s creation of a new legal framework could however create a further

insurmountable obstacle for an escapist UK in the BoR context. The Treaty in 2009, by virtue

of giving the EU legal personality286 and through its amendment of s.6(2), obliges the EU to

accede to the ECHR.287 With accession inevitable, a final draft accession agreement288 was

concluded in April 2013, with negotiations currently ongoing.

This significant change will introduce judicial supervision by Strasbourg over any ‘acts,

measures or omissions’289 taken by EU institutions and by its Member States when applying

EU law. Although this change predominantly concerns the EU as a separate legal entity, with

the likely eradication of the ‘Bosphorous presumption’290 (that all EU acts are in conformity

with the ECHR291) there are various ways that accession will further affect Member States

including the UK.

The CJEU (as an EU institution) in giving its judgement to national courts on rights based

claims via Article 267,292 will be bound or susceptible to review by the ECtHR in regards to its

interpretation of Convention rights (via the Charter); a concept previously expressed by the

CJEU.293 It is stressed that accession will not affect the autonomy of the CJEU, 294 but the

binding effect of the Convention system295 will mean a surrender of some of its autonomy. To

286 TEU Art 47. 287 TEU Art 6(2), ‘The Union shall accede to the European Convention for the Protection of Human Rights and

Fundamental Freedoms’. 288 Draft Revised Agreement on the Accession of the European Union to the Convention for the Protection of

Human Rights and Fundamental Freedoms, in Council of Europe ‘Fifth Negotiation Meeting Between the

CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to

the European Convention of Human Rights' (Strasbourg 10 June 2013) < www.coe.int > Accessed 2 January

2014. 289 ibid, Preamble to Draft Revised Agreement on the Accession of the European Union to the Convention for the

Protection of Human Rights and Fundamental Freedoms. 290 Bosphorus Hava Yollari Turizm v. Ireland App No 45036/ 98 (ECHR 2005), (2006) 42 EHRR 1, para 155 -

156. 291 T Lock, ‘Beyond Bosphorus: The European Court of Human Rights' Case Law on the Responsibility of

Member States of International Organisations under the European Convention of Human Rights’, (2010) 10

Human Rights Law Review 798. 292 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326 (TFEU), Art

267. 293 Opinion 1/91 [1991] ECR 1-6079, para 39. 294 T Lock, ‘Walking on a Tightrope, the Draft ECHR Accession Agreement and Autonomy of the EU Legal

Order’ [2011] 48(4) CLMR 1025-1054. 295 TFEU Art 216(2).

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depart from a Strasbourg interpretation would possibly result in a finding of non-compliance.296

A Member State would thus be indirectly effected by the ECHR and its court, due to the

accession. The effect of this CJEU/ECHR relationship shows its true force however regarding

the application of the Charter.297 Additionally if an EU directive is found in violation of the

ECHR, because Member States would have effectively implemented this domestically,298 they

too, would be in violation of the ECHR.

The more drastic consequence could however spawn from the accession procedure itself. As

noted, the accession of the EU to the ECHR is an obligation on the Union as a whole.299 The

accession as a mixed international agreement will, per Article 218(8) TFEU,300 require

ratification by all Member States in order to enter into force (Mixity). 301 Mixity, alongside the

so called ‘duty of loyalty’ provision, Article 4(3),302 would mean that the UK will likely be left

with no choice but to ratify the agreement which would become legally binding on the UK.303

Indeed, it is asserted that the combination of mixity and Article 4(3) can severely restrict the

manoeuvrability of Member States on the international plane.304 Furthermore it could be

implied that Art.4 of the UK’s Accession Treaty305 contains a continuing obligation to ratify

EU treaties and agreements.

The implications of this however are illuminated by Eckes:

In light of the fact that all Contracting Parties to the ECHR also have to ratify an

accession Treaty306 and that all EU Member States are Contracting Parties to the

296 C. Eckes, ‘One Step Closer: EU Accession to the ECHR’ (Const. L. Blog 2nd May 2013) <

http://ukconstitutionallaw.org/2013/05/02/christina-eckes-one-step-closer-eu-accession-to-the-echr/ > Accessed

2 January 2014. 297 See Chapter 4.1 The Charter of Fundamental Rights. 298 TFEU, Art 288. 299 TEU, Art 6 (2). 300 TFEU, Art 218(8) ‘The decision concluding this agreement shall enter into force after it has been approved

by the member states’. 301 C Hillion & P Koutrakos, Mixed Agreements Revisited: The EU and its Member States in the World (Hart

Publishing 2010). 302 TEU, Art 4(3) ‘The Member States shall take any appropriate measure, general or particular, to ensure

fulfilment of the obligations arising out of the Treaties’. 303 TFEU Art 216 (2). 304 E. Neframi, ‘The Duty of Loyalty: Rethinking its Scope through its Application in the Field of EU External

Relations’ (2010) 47 CMLRev 323. 305 Treaty of Accession of Denmark, Ireland and the United Kingdom (1972) OJ L 73. 306 ECHR, Art 59.

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ECHR… it could be argued that being party to the ECHR has de facto become an

accession requirement.307

To clarify, this would likely mean that the UK would have to be a party to the ECHR in order

to fulfil its obligation to ratify the accession agreement. This leaves the chance of withdrawal

from the Convention in significant doubt. It has been claimed in European Parliamentary

debate that the UK could not opt out of the Convention because accession was mandated by

the Lisbon Treaty.308 Such a result could have possibly been a motivation behind the fact that

the UK apparently ‘at every stage, dragged out and tried to delay recommendations on the

accession’.309 Such a requirement would clearly make sense. The main objective of the EU’s

accession is to ensure a uniform standard protection of fundamental rights Europe-wide.310

Were the EU to be a party to the Convention, but the UK not, this would have the effect of

creating different tiers of protection within the EU, going against the uniformity objective.

4.3.1 A Political Disaster?

The political reasons behind the claims of ‘impossibility’ is that it would be, as Spielman J

states, a ‘political disaster’.311

The most obvious reason for this is that the UK is seen as the ‘best pupil in its class, the leading

nation on human rights’.312 If withdrawal from the Convention occurred then it is contended

that this would send an alarming signal across Europe that the UK had lost confidence in

Strasbourg.313 There are worries that this would negatively impact on more prominent human

rights offenders such as Russia, Turkey and Georgia, resulting in a disobedience contagion.314

307 Christina Eckes, ‘The EU Accession to the ECHR: Between Autonomy and Adaptation’ [2013] 76(2) MLR

254. 308 European Parliament, ‘EU accession to the European Convention on Human Rights (debate)’ (19 April 2012

– Strasbourg) < http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20120419+ITEM-

010+DOC+XML+V0//EN > Accessed 20 January 2014, see Gerrard Batten. 309 N Nielsen ‘UK Obstructing EU Accession to Human Rights Convention’ EUobserver (19 April 2012) <

http://euobserver.com/justice/115954 > Accessed 20 January 2014. 310 A Kaczorowska, European Union Law (Routledge 3rd edn 2012) 232. 311 BBC, ‘Spielmann: UK leaving ECHR would be a 'political disaster' BBC News (14 January 2014) <

http://www.bbc.co.uk/news/uk-politics-25729321 > Accessed 14 January 2014. 312 Travis (n 270). 313 A Wagner, ‘What would happen if the UK withdrew from the European Court of Human Rights?’ (UK

Human Rights Blog 3rd March 2013) < http://ukhumanrightsblog.com/2013/03/03/what-would-happen-if-the-

uk-withdrew-from-the-european-court-of-human-rights/ > Accessed October 2013. 314Alice Donald, Jane Gordon and Philip Leach ‘The UK and the European Court of Human Rights’ (EHRC

April 2012) < http://www.equalityhumanrights.com/news/2012/april/commission-publishes-research-into-

european-court-of-human-rights-judgments-relating-to-uk-governmen/ > Accessed March 2013.

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It is argued that states such as Russia, who are subject to Strasbourg’s jurisdiction substantially

more than the UK,315 only tolerate this because other member states do.316 These worries are

borne from responses like that of the Ukrainian Government, whose hostility towards

Strasbourg seemed to be influenced by the UK’s attitude, stating ‘Ukraine is not the only

country having difficulty in implementing European Court judgments: Great Britain would

very much like to leave the European Convention on Human Rights.’317

How much weight does this argument deserve though? Is the integrity and safety of the UK a

more predominant consideration than setting a good example for others,318 especially when as

Fisher QC insightfully states, that it is a political reality that withdrawal by the UK does not sit

particularly high on the agenda or worries of the aforementioned countries.319 Some believe

that the UK would become a ‘Pariah state’320 and lose its credibility when promoting human

rights. Comparisons are made with the dictatorships of Belarus321 and the Greek Junta of the

1960’s; both not a party to the ECHR and both seen as outcasts. A more relevant comparison

may be Venezuela who recently denounced the Pact of San José.322 They have been subject to

scathing criticisms regarding this move and the numerous human rights breaches that have

occurred within the country.323 Although to compare the democratically elected government of

the UK whose foreign policy is strongly committed to promoting international human rights to

those countries, could be argued as offensive,324 it does provide example of the possible

consequences were the UK to embark down such a path.

315 Council of Europe, ECHR Statistics < http://echr.coe.int/Pages/home.aspx?p=reports > – Russia, 134

judgments, 122 violations. UK 24 judgments, 10 violations. 316 Pinto-Duschinsky (n 259). 317 Crown Office Row, ‘Hostility to the European Court and the Risks of Contagion – Philip Leach and Alice

Donald’ (UK Human Rights Blog 21 November 2013) < http://ukhumanrightsblog.com/2013/11/21/hostility-to-

the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/ > Accessed 18 December 2013. 318 Pinto-Duschinsky (n 259). 319 Lord Faulks QC & J Fisher QC, ‘Unfinished Business’ (n 201) 190. 320 H Watt, ‘Britain Could Become Belarus if it Abandons Human Rights Legislation, Warns Attorney General’

The Telegraph (9 October 2012) < http://www.telegraph.co.uk/news/politics/9596949/Britain-could-become-

Belarus-if-it-abandons-human-rights-legislation-warns-Attorney-General.html > Accessed 18 January 2014. 321 ibid. 322 American Convention on Human Rights 1978. 323 Human Rights Watch, World Report 2014: Venezuela < http://www.hrw.org/world-report/2014/country-

chapters/venezuela?page=3 > Accessed 15 March 2014. 324 Geeri Peev, ‘Britain 'Risks Being like Greece under the Junta!' Fury at Euro Judge's Warning over UK

Quitting Human Rights Court’ The Mail Online (18 February 2011) < http://www.dailymail.co.uk/news/article-

1357928/Head-human-rights-court-says-Britains-decision-prisoners-vote-disaster.html > Accessed 19 February

2014.

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4.3.2 The Article 58 Consequence

It is also possible that withdrawal from the Convention would leave a bitter taste for longer

than some would hope. Article 58 (2) makes it clear that denunciation of the Convention will

not release the High Contracting Party concerned:

[F]rom its obligations under this Convention in respect of any act which, being capable

of constituting a violation of such obligations, may have been performed by it before

the date at which the denunciation became effective. 325

The UK would then be bound by the Convention and Strasbourg’s judgements over any

violating act which occurred up to the end of the 6 month period of notification. Currently

Strasbourg has a backlog of cases of over one hundred thousand;326 UK pending cases account

for around three percent of that figure.327 The court seeks to conclude cases within three years

(although some can last up to 7 years) depending on certain factors such as case complexity

and parties. Based purely on these facts alone, if withdrawal was successful, Strasbourg’s

influence in the short term would still loom over the UK for a considerable amount of

subsequent years, creating case complexities and costs.

4.4 The Common Law Lives On

Ignorance towards the significant effect of the common law however highlights the real

naivety of those that assume that the repeal and withdraw option gaining momentum would

rid the UK of unwanted European influences. Fundamental rights are by no means a new

invention and have been embedded within the common law for decades.328 As was firmly

asserted in R (Daly), ‘Some rights are inherent and fundamental to democratic civilised

325 ECHR Art 58 (2). 326 Council of Europe, ECHR Statistics < http://echr.coe.int/Pages/home.aspx?p=reports > Accessed 5 January

2014, General statistics as of 30/11/2013. 327 ibid, see pending cases as of 31/11/2013. 328 Kennedy v The Charity Commission [2014] UKSC 20, Lord Toulson.

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society. Conventions… and the like respond by recognising rather than creating them.’329

Such rights are often labelled as common law constitutional rights (CLCR).

The introduction of the HRA acted as a further catalyst for such recognition and has

ultimately ‘led judges to discover what was already implicit in the common law while

simultaneously augmenting it.’330 Evidence of such evolution being the common law

absorption of the right to privacy (Article 8) shown in cases such as Douglas331 and Campbell

v MGN.332 It follows that Convention rights should not be seen as separate exotic rights, but

rather rights that are in fact now implanted within the domestic legal system through the

common law; the ‘HRA having fostered an awareness of rights…. that repeal is unlikely to

mollify.’333

CLCR’s are to an extent vulnerable to express incompatible law by parliament334 and there

has at times been a rejection of their use.335 However, a series of recent UK Supreme Court

decisions have sounded out a clear signal that Parliament’s capacity to manipulate future

rights would be greatly limited by the common law if withdrawal eventuated. A significant

new found importance has been placed on the status of common law rights in cases such as

Osborn336, Kennedy337 and A v BBC338. In these cases Judges have appeared to put the

common law centre stage,339 referring to an over reliance by appellants on ECHR rights

rather than focusing on their common law counterparts as the starting point.340 As stated in

Kennedy, not only can the common law provide equal and adequate protection but ‘in some

areas… may could go further’,341 thus providing a strong source for fundamental rights. In

329 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [81] – [82] Lord Reed. 330 M Elliot, ‘Repealing the Human Rights Act, withdrawing from the ECHR: be careful what you wish for’

(Public Law for Everyone March 4 2013) < http://publiclawforeveryone.com/2013/03/04/repealing-the-human-

rights-act-withdrawing-from-the-echr-be-careful-what-you-wish-for/ > Accessed November 2013. 331 Douglas v Hello! Ltd [2005] EWCA Civ 595. 332 Campbell v MGN [2005] UKHL 61, [2005] 4 All ER 793. 333 Scott Stephenson, ‘The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back

the Clock?’ (UK Const. L. Blog) < http://ukconstitutionallaw.org/2013/03/07/scott-stephenson-the-

constitutional-significance-of-statutory-repeal-how-far-can-parliament-turn-back-the-clock/ > Accessed 8

February 2014. 334 See Al-Rawi and others v The Security Service and others [2011] UKSC 34, [2011] 1 AC 531. 335 Watkins v Home Secretary [2006] UKHL 17. 336 Osborn v Parole Board [2013] UKSC 61. 337 Kennedy v The Charity Commission [2014] UKSC 20. 338 A v BBC [2014] UKSC 25; See also R (Guardian News and Media Ltd) v City of Westminster Magistrates’

Court [2012] EWCA Civ 420; [2013] QB, R (HS2 Action Alliance Ltd) v Secretary of State for Transport

[2014] UKSC 3. 339 M Elliot, ‘The “vigour” of common law rights and values: A v BBC [2014] UKSC 25’ (Public Law for

Everyone May 9 2014) < http://publiclawforeveryone.com/2014/05/09/the-vigour-of-common-law-rights-and-

values-a-v-bbc-2014-uksc-25/ > Accessed July 2014. 340 Osborn v Parole Board [2013] UKSC 61- find. 341 Kennedy v The Charity Commission [2014] UKSC 20, [46] LJ Mance.

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that case, the common law principle of open justice as opposed to Article 10.342 This is not to

say that the Convention should be ignored, but the judges will use it more as a yardstick for

the CL to be measured against.343

What can then be taken from this is a dagger to the assumption that an ECHR - HRA less UK

would have a blank canvas from which to start a fresh; the common-law constitutional

landscape left behind would, upon recent SC evidence, produce protection and judgements

remarkably similar to that which parliament have fled from during the ECHR - HRA era. The

common law and its accelerated development would remain and in ‘vigorous health’.344

4.5. Final thoughts

This chapter has looked to shed light on important constitutional questions involving the

possibility of a UK BoR free from the Convention system. Analysis has shown that the claim,

that membership of the COE and the EU requires adherence to the Convention, has been greatly

exaggerated. It is more a matter of perception and politicisation of legal possibility than actual

reality. Yet, the statement that withdrawal is a clear policy option open to the UK345 is

questionable when attention is given to the consequences of the Lisbon Treaty’s introduction

of a new legal framework.

It would seem that the UK, depending on their obligations under EU law to ratify legislation,

would be bound to remain a party to the Convention by virtue of the EU's accession to the

Convention. Even if withdrawal did materialise, the practical reasons for doing so could

become pointless or at least greatly limited as the Convention and the Strasbourg court, via its

interlinking relationship with the Charter, are reintroduced into the UK, but with added

authority by virtue of being EU law. While the Convention regime would still be present for a

number of subsequent years, applying to existing Strasbourg cases,346 it is it is the effect of the

common law that provides a striking reminder that parliament cannot take back with one hand,

what they have once given with the other. Although it is still unclear, it is argued that

subsequent political consequences would also make withdrawal an unfruitful task. There are

342 ECHR. 343 M Elliot (n 339). 344 R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013]

QB 618 [88] (LJ Toulson). 345 See Lord Hoffman, ‘The Universality of Human Rights’ (2009) 125 LQR 416. 346 ECHR, Art 58.

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current calls for a definitive clarification of the Lisbon treaty’s effects on the UK,347 however

it is unlikely that the position will differ from what is already stated.

It is contended then that the UK, to the disappointment of many, is unlikely to ever completely

escape the grasp of the Convention system, placing the likelihood of a future UK BoR

decoupled from the ECHR as minimal.

347 Ministry of Justice, ‘Review of the Balance of Competences: MOJ’ < https://www.gov.uk/review-of-the-

balance-of-competences > Accessed January 2014.

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CHAPTER 5

Devolution and the ‘Ownership’ Issue

Within the last 16 years the domestic constitutional landscape of the UK has seen a radical

transformation from a unitary to a quasi – federal state.348 A continuance of power delegation

to the devolved regions of Northern Island349 (NI), Scotland350 and Wales351 has meant that the

autonomy of the devolved has greatly increased while Westminster’s legislative power has

subsequently decreased.

Yet within the BoR context the significance of this ‘devolution dimension’ has been given

insufficient thought.352 As stated, the Commission’s strongest argument was that a British

rebranded UK BoR which still incorporated the ECHR, could tackle the lack of ‘ownership’

and satisfaction of the HRA. Indeed, as shown, such a model coupled with already stated

features353 could provide a workable solution. However, would such a BoR really gain the

necessary ‘ownership’ in what now, more than ever, is an increasingly dis-United Kingdom?354

Framed thus, does devolution seek to undermine the BoR ‘ownership’ objective and as a

consequence could it undermine the possibility of such a document being enacted?

5.1 Disorder of the Legal Orders

What up to now seems to have been underestimated, is the differing views and attitudes towards

human rights within this pluri-national UK. The BoR Commission reported that there was little,

348 V Bogdanor, The New British Constitution (Hart Publishing 2009). 349 Northern Island Act 1998 [NIA 1998]. 350 Scotland Act 1998 [SA]; Scotland Act 2012. 351 Government of Wales Act 1998; Government of Wales Act 2006 [GWA]. 352 C Bell, ‘Christine Bell: Bills of Rights and Devolution: From the Universal to the Particular’ (UK Const. L.

Blog, November 15th 2011) < http://ukconstitutionallaw.org > Accessed 2 February 2014; P Sands & H

Kennedy, ‘In Defence of Rights’ in Commission on a Bill of Rights, ‘A UK Bill of Rights: The Choice before

us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013. 353 Chapter 3 Final Thoughts. 354 Harvey C, ‘Colin Harvey: Engaging with Human Rights in a Disunited Kingdom’ (UK Const. L. Blog 13

March 2012) < http://ukconstitutionallaw.org/2012/03/13/colin-harvey-engaging-with-human-rights-in-a-

disunited-kingdom/ > Accessed 2 February 2014; Sumption J, ‘The Disunited Kingdom: England, Ireland and

Scotland’ (Denning Society Lecture 2013) < http://supremecourt.uk/news/speeches.html > Accessed 15

February 2014.

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if any, criticisms of the current UK human rights system within the devolved regions.355 Rather

the devolved, especially Scotland, strongly support the HRA and Convention system. Scotland

have stated that they see the HRA and ECHR as foundations from which to build upon,356 not

diminish. Such an attitude is mirrored in NI and Wales.357 It could be argued that the called for

changes are then particularly English;358 a view quite clearly expressed by Wales in the BoR

investigations.359

An explanation for this support could be that the HRA and ECHR are more deeply embedded

within the constitutional fabric of the devolved. Unlike Westminster, the devolved institutions

cannot legislate incompatibly with ‘Convention rights’,360 nor can they modify the HRA.361 The

HRA’s rights362 and sections (s 2, 3 and 7) are further tied into the devolution statutes via

provisions363 or case law364 and ultimately the Act was clearly an important pillar of the new

constitutional framework of devolution in 1998.

The introduction of a UK BoR would entail repealing and replacing the HRA, altering the way

Convention rights are domestically incorporated. Here lies the initial problem. How can a BoR

instrument be trusted and seen as the UK’s own, let alone seen as symbolic,365 when it is so

unwelcomed and its predecessor so strongly supported by the devolved? Such ownership is

unlikely. But this is not the only problem however.

Although a UK BoR would have ‘at its core the rights currently in the ECHR’,366 it is doubted

whether the rights-based content of a UK BoR instrument would be able to cater for the varying

wants of the entire UK. This is demonstrated by the fact that the Magna Carta and the right to

355 Commission on a Bill of Rights, A UK Bill of Rights: The Choice before us 18 December 2012 Vol. 1 <

http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, 163. 356 Joint Committee on Human Rights, A Bill of Rights for the UK? (HL 165-II/HC 150-II, July 2008) 59, 60.

See A Miller, ‘To Scots, Repealing the Human Rights Act is a Backward Step’ The Guardian (14 December

2011) < http://www.theguardian.com/law/2011/dec/14/scotland-repeal-human-rights-backward-step > Accessed

14 March 2014. 357 A Hirsch, ‘Hating the Human Rights Act - An English Phenomenon’ The Guardian (8 February 2010) <

http://www.theguardian.com/commentisfree/henryporter/2010/feb/08/human-rights-act-devolution-constitution-

labour-conservatives > Accessed January 24 2014. 358 The Commission’s Report (n 355) 163, para 9.3. 359 ibid 167, para 9.21. 360 SA s 29 (2)(d) and s 57 (2); NIA s 6 (2)(c) and s 24 (1)(a); GWA 2006 s 81 (1) and s 94 (6) (c). 361 SA, s 29 and Schedule 4; NIA S. 6 (2f) and 7(1). 362 HRA, s 1; See, s 126, SA; s 98 NIA; s 158 GWA 2006. 363 NIA s 83; SA s 101; GWA 2006 s 154. 364 Anderson v Scottish Ministers [2001] UKPC D5, [2003] 2 AC 602 [8]; Clancy v Caird [2000] SLT 546 [3]

(Lord Sutherland). 365 See Chapter 2.4 More than just a Legal document. 366 The Commission’s Report (n 355) 177, para 12.11

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trial by jury, both seen as historic British constitutional institutions,367 do not gather such strong

respect in the devolved (especially Scotland) as they do in England.368 Thus, their often called

for inclusion within a BoR369 would be problematic. It cannot be forgotten that there are

differing legal traditions in England, NI, Scotland and Wales and therefore obvious divides

regarding human rights in the UK. In fact, as Speaight asserts, the devolved regions have and

are, incrementally developing their own unique separate rights based agenda’s.370

Scotland has recently launched a ‘UK first’ human rights action plan371 establishing its

commitment to internationally agreed human rights via the UN treaty system, and the report

on their potential independence evidences their intent to further socio –economic rights372 (as

have NI373) such as the right to health care; something the UK has always been particularly ill-

disposed to due to the complexities in resolving social or economic problems.374

NI provides the strongest example as they edge closer by virtue of the Belfast Agreement

(BA)375 to their own BoR. The nature of devolution in NI is slightly different. The NIA was

primarily enacted as a consequence of the BA;376 a multi-dimensional international Treaty

which acted as a peace agreement between nationalist and unionist divisions in NI and a

367 Pinto-Duschinsky M, Bringing Rights Back Home: Making human rights compatible with Parliamentary

Democracy in the UK (London: Policy Exchange, 2011) < www.policyexchange.org.uk > Accessed September

20 2013, 60. 368 JUSTICE, Devolution and Human Rights (8 February 2010 Report) <

http://www.justice.org.uk/resources.php/30/devolution-and-human-rights > Accessed 11 January 2013. 369 See Helen Fenwick, ‘Conservative Anti-Rhetoric, the Bill of Rights ‘Solution’ and the Role of The Bill of

Rights Commission’, in R Masterman & I Leigh (eds), The United Kingdom's Statutory Bill of Rights:

Constitutional and Comparative Perspectives (OUP/British Academy 2013) 328. 370 Anthony Speaight QC, ‘Devolution Options’ in Commission on a Bill of Rights, ‘A UK Bill of Rights: The

Choice before us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013. 371 BBC News, ‘Scotland in ‘UK first’ Human Rights Action plan’ BBC (10 December 2013) <

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25319265 > Accessed 22 January 2014. 372Scottish Constitutional Futures, ‘Human Rights and Scotland’s Constitutional Future (SCFF Blog 6 June

2013)

<http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/Articl

eView/articleId/1698/Human-Rights-and-Scotlands-Constitutional-Future.aspx > Accessed 15 February 2014. 373 D Grieve, ‘Can the Bill of Rights do Better than the Human Rights Act?’ (Middle Temple Lecture, 30 th

November 2009) < http://www.dominicgrieve.org.uk/news/can-bill-rights-do-better-human-rights-act >

Accessed 10 March 2014, ‘In Northern Ireland, a Bill of Rights is under consideration, although the report of its

Commission has proved controversial in its advocacy of socio-economic rights which are definitely not under

consideration for a Conservative UK Bill of Rights.’ 374 The Commission’s Report (n 355) 152, 8.28; See also Chapter 4.1 The Charter on Fundamental Rights and

Freedoms; V Bogdanor, Human Rights and The New British Constitution, (JUSTICE Tom Sargant Memorial

Annual Lecture 2009) < www.justice.org.uk > Accessed September 15 2013. See as an example R v

Cambridgeshire Health Authority, ex parte B [1995] 1 WLR 898 (Bingham L) ‘Difficult and agonizing

judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the

maximum number of patients. This is not a judgment which the court can make.’ 375 The Belfast agreement 1998 (BA), formally entered into force on the 2 December 1999; also known as the

Good Friday Agreement (GFA). 376 BA, Preamble.

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foundation from which to establish a devolved government.377 A duty was established on the

NI Human Rights Commission to create a BoR for NI which, once formalised, would comprise

of the ECHR and additional supplementary rights ‘to reflect the particular circumstances of

NI’;378 a duty incorporated in the NIA.379 Although the lengthy NI BoR forum, launched by the

St Andrews Agreement,380 has in recent years stalled,381 work on its implementation

continues.382

In Wales it has been highlighted that there is an emerging Welsh equalities agenda which is

more suited to the everyday needs of Wales.383 In particular there has been a focus on extending

the protection of children’s discrimination rights via the UNCRC.384 As Wales’s legislative

primary power increases,385 it is likely that further inroads will be made into this area.

The differing stances on human rights within the UK evidences the difficulty of a UK BoR

being owned by all. Quebec provides a useful example when it formally rejected the proposed

Canadian constitution in 1980, stating that it would be deprived of autonomy in relation to

French language and education rights.386

377 Austen Morgan, The Belfast Agreement: A Practical Legal Analysis (TSO 2000). 378 BA, Rights, Safeguards and Equality of Opportunity, para.4 ‘The new Northern Ireland Human Rights

Commission will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights

supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of

Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to

reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and

– taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland’. 379 NIA 1998 s 69 (7). 380 St Andrew’s Agreement 2006. 381 Colin Harvey, ‘Where Now For the Northern Island Bill of Rights Process?’ (UK Const. L. Blog, 28 July

2011) < http://ukconstitutionallaw.org/2011/07/28/colin-harvey-where-now-for-the-northern-ireland-bill-of-

rights-process/ > Accessed 2 February 2014. 382 Amnesty International UK, Northern Ireland Bill of Rights (Amnesty 30 October 2013) <

http://www.amnesty.org.uk/northern-ireland-bill-rights#.Ux-979GPPX4 > Accessed 12 March 2013. 383 Paul Chaney, Equal Opportunities and Human Rights: The First Decade of Devolution in Wales (EHRC

2009) < http://www.equalityhumanrights.com/wales/library/equal-opportunities-and-human-rights-the-first-

decade-of-devolution-in-wales/ > Accessed 12 March 2014. 384 United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2

September 1990) 1577 UNTS 3 (UNCRC); The ‘Rights of Children and Young Persons (Wales) Measure’

2011. 385 Welsh Referendum 2011 (Welsh Government March 2011) <

http://wales.gov.uk/legislation/referendumpowers/?lang=en > Accessed 12 March 2014. See recently Steven

Morris, ‘Give Wales Power over Police and Justice – Devolution Report’ The Guardian (3rd March 2014) <

http://www.theguardian.com/uk-news/2014/mar/03/wales-devolution-report-policing-justice > Accessed 12

March 2014; See Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers

to Strengthen Wales (3rd March 2014) < http://commissionondevolutioninwales.independent.gov.uk/search/doc-

type/papers/ > Accessed 12 March 2014. 386 Geoffrey Marshall, `Canada’s New Constitution (1982): Some Lessons in Constitutional Engineering’, in

Vernon Bogdanor, Constitutions in Democratic Politics (Dartmouth Publishing 1988).

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There are those that believe this could be resolved by a UK BoR with an ‘irreducible core’ of

rights available throughout the UK then being augmented by additional devolved rights

applying solely within their respective jurisdictions.387 Speaight, in criticising the ‘theoretical

attraction of a single set of rights throughout a sovereign state’,388 argues that such a model is

present in many parts of the world. However as Bell states, some argue that differentiated

regional rights can be too locally driven389 and O’Cinneide asserts that ‘As a matter of

constitutional principle, an instrument to guarantee fundamental rights… should ideally apply

to the whole territory.’390

Even if such a model was desirable, this still disregards the fact that the devolved are strongly

against changing and replacing the HRA. Furthermore this is still incompatible with NI’s

situation. Any UK BoR, even one containing a separate NI chapter (as has been suggested),

would clearly contravene the Irish Parliament’s wishes.391 It is argued that it could even

potentially reignite tensions within the NI divide.392 More fundamentally it would put the UK

in direct breach of the BA and the governments’ obligation to ensure implementation of a

separate NI BoR.393

This problematic ‘ownership’ issue is heightened by the fact that notions of sub-state liberal

nationalism are alive and increasing394 within the pluri-national UK. One Scottish minister in

responding to the JCHR said ‘we consider ourselves Scottish and we consider those south of

the border to be English’,395 rather than British. Such a view is indicative of the current Scottish

independence agenda which places further emphasis on the lack of unity. Even the name ‘UK’

BoR could cause tension in regards to the nationalist and republican sections of NI.396

This places further doubt on whether a BoR could truly be ‘supported by the (British)

communities and peoples that it is designed to be used by’397 and thus owned, due to the

387 The Commission’s Report (n 355) 149, para 8.17. 388 Speaight QC (n 370). 389 Bell (n 352). 390 JUSTICE, Devolution and Human Rights (8 February 2010 Report) <

http://www.justice.org.uk/resources.php/30/devolution-and-human-rights > Accessed 11 January 2013. 391 See Parliamentary Debates (21 October 2009, vol 692, (3) Answer of the Taoiseach in response to a question

by Deputy Eamon Gilmore) < http://debates.oireachtas.ie/Xml/30/DAL20091021.PDF. >, p. 564. 392 JUSTICE (n 390) 164. 393 BA, Rights, Safeguards and Equality of Opportunity, para.4. 394 C Harvey, ‘Taking the Next Step? Achieving another Bill of Rights’ [2011] 11 (1) European Human Rights

Law Review 24. 395 Joint Committee on Human Rights, A Bill of Rights for the UK? (HL 165-II/HC 150-II, July 2008) 59, 60. 396 JUSTICE (n 390). 397 J Wadham ‘Why Incorporation of the European Convention on Human Rights is not enough’ in Gordon, R.

and Wilmot-Smith, R. (eds.) Human Rights in the United Kingdom (Oxford: Oxford University Press, 1996).

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divergent views within the UK. Due to the increasing autonomous nationalism of the devolved

regions, it is unlikely that it would spawn ‘a moment of national definition’,398 failing to satisfy

the identificatory function of a BoR.399

However from this spawns a further problem. Upon a closer look of the UK’s legal

constitutional framework, this lack of ‘ownership’, acceptance or even want of a UK BoR from

the devolved, could undermine the complete possibility of such an instrument even being

introduced.

5.2 Who has the power? The Devol-ution is in the detail of the statutes

In line with chapter one’s confirmation of the doctrine of parliamentary sovereignty,400 in

theory Westminster Parliament is free to legislate as it wishes,401 including the enactment of a

UK BoR. The devolution concept was always based on the delegation of power, without the

relinquishing of sovereignty.402

However as many have rightly stated,403 any alteration of UK human rights law which touched

upon devolved competencies would trigger the Sewel convention.404 This constitutional

convention states that for Westminster to legislate on devolved matters, consent from the

respective legislatures is required through what is known as a ‘Sewel motion’.

What is a devolved matter or not, is determined by the devolution statutes. ‘Excepted’405 or

‘reserved’406 matters such as immigration and national security to name a few, remain entirely

within the legislative competence of Westminster. The devolved have legislative competence,

398 Joint Committee on Human Rights (n 395) 28, para. 88. 399 See Chapter 2.3.2 More Than Just a Legal Document. 400 See chapter 1.1, Underlying principles of the constitution; See also confirmation in SA s 28 (7); NIA s 5 (6); 401 Dicey, A.V. An Introduction to the Study of the Law of the Constitution (10th edn, 1959). 402 Mark Elliot, ‘Parliamentary Sovereignty and the New Constitutional Order: Legislative Freedom, Political

Reality and Convention [2002] 22(3) Legal Studies 340. 403 R Masterman & I Leigh (eds), The United Kingdom's Statutory Bill of Rights: Constitutional and

Comparative Perspectives (OUP/British Academy 2013); See also JUSTICE (n 390). 404 HL Deb 21 July 1998, vol 592, col 791, ‘[T]here could be instances where it would be more convenient for

legislation on devolved matters to be passed by the UK Parliament. However, as happened in Northern Ireland

earlier in the century, we would expect a convention to be established that Westminster would not normally

legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament’. Confirmed

in the Memorandum of Understanding dated 13 December 2013 cm 5240, para 13; more recently in the

Memorandum of Understanding and Supplementary Agreements dated September 2012. 405 NIA 1998 Schedule 2. 406 SA 1998 Schedule 5.

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within their respected regions, over ‘devolved’407 or ‘transferred’408 matters including health

and social care and environmental matters.

In regards to human rights however, it appears at first glance that they are a reserved or

excepted matter. The HRA is impliedly a reserved matter as the devolved institutions cannot

modify the HRA409 (entrenchment). ‘International relations’ and ‘foreign affairs’ such as the

relationship with the CoE and the ECtHR also fall under Westminster Parliaments exclusive

competence. Yet as Himsworth states,410 these considerations do not result in ‘human rights’

themselves being formally reserved. This would be a necessary inference from the fact that

human rights are not explicitly reserved to Westminster.411

In fact what does become apparent is that if Westminster attempted to repeal and replace the

HRA with a UK BoR, this would ultimately touch upon devolved competencies in numerous

ways.

Firstly, notwithstanding the reserved nature of international relations and foreign affairs, the

‘observation and implementation’ of the ECHR within their regions is a devolved matter.412 It

could then also be argued that the HRA becomes partly a devolved matter as it is strictly a

domestic vehicle for the Convention, thus associated with the ‘observation and

implementation’ of the ECHR.413 Furthermore a substituted BoR would undoubtedly touch

upon devolved competences through its redefining of Convention rights, possibly ‘in language

reflecting our own heritage and tradition’,414 especially if this entails qualifications on the

meaning or breadth of the Convention rights through attempting to clarify415 or adjust the scope

and balance of rights. This would either reduce or increase devolved competency in areas such

407 SA 1998 ss28 and 29. 408 NIA 1998. 409 SA, s 29 and Schedule 4; NIA S. 6 (2f) and 7(1). 410 Chris Himsworth 'Devolved Human Rights', (School of Law Working Paper Series, 2011/22 SSRN, 2011) <

http://www.law.ed.ac.uk/people/chrishimsworth > Accessed 1 February 2014. See Speaight QC (n 252) (opinion

of James Mure QC). 410 JUSTICE (n 390). 411 JUSTICE (n 390). 412 NIA 1998 Schedule 2, para. 3(c); SA 1998 Schedule 5, para. 7(2); GWA 2006 Schedule 5. 413 JUSTICE (n 390); See also C O’Cinneide, ‘Human rights, Devolution and the Constrained Authority of the

Westminster Parliament’ (UK Const. L. Blog, 4th March 2013) <

http://ukconstitutionallaw.org/2013/03/04/colm-ocinneide-human-rights-devolution-and-the-constrained-

authority-of-the-westminster-parliament/ > Accessed 2 February 2014. 414 The Commission’s Report (n 355) 147, para 8.8. 415 Cameron D, ‘Balancing Freedom and Security – a Modern British Bill of Rights’ The Guardian (June 26,

2006, Centre for Policy Studies) < http://www.theguardian.com/politics/2006/jun/26/conservatives.constitution

> Accessed 5 January 2013, ‘it should protect the fundamental rights set out in the European Convention on

Human Rights in clearer and more precise terms.’

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as criminal justice and education416 and would affect the requirement on the devolved bodies

to comply with Convention rights.417 What’s more, the enactment of additional rights could

introduce further constraints on the legislature’s devolved competency, for example a right to

healthcare which is a devolved responsibility. Not least a BoR would clearly require

amendments to the devolution statutes.

In simpler terms this shows that the enactment of the suggested UK BoR would require clear

consent from the Scottish Parliament and the NI and Welsh Assembly’s. Given the already

shown widespread support for the current human rights system and the doubting views

regarding a replacement BoR, this consent would not be forthcoming.

Legally, constitutional conventions are traditionally not enforceable by the courts,418 and so in

theory Westminster Parliament could, despite an inevitable political backlash, still look to enact

a BoR regardless of consent. Yet, as has been shown, the devolved bodies are able to legislate

in the realm of ‘implementing and observing’419 the ECHR and so as O’Cinneide says, they

could ‘restore much of the status quo.’420 It is likely that the devolved would simply introduce

a HRA equivalent giving equal or even greater protection. But such constitutional restructuring

would be highly undesirable. It would create troubling inconsistencies and complexities within

the UK legal system, not least because powers are not all ‘neatly separated into watertight

compartments’,421 with clear overlaps between devolved and reserved powers, for example

immigration control (reserved) and criminal justice or social welfare (devolved).422 Justice in

their response to the Commission, highlighted that enacting a UK BoR could lead to four

different models.423 To slightly reconfigure Bells recent quote, ‘to produce one Bill of rights

may be regarded as a misfortune. To produce four, looks like carelessness’.424

416 Jack Beatson, Stephen Grosz, Tom Hickman and Rabinder Singh, Human Rights: Judicial Protection in the

UK (Sweet & Maxwell, 2008) 801. 417 SA s 29 (2)(d) and s 57 (2); NIA s 6 (2)(c) and s 24 (1)(a); GWA 2006 s 81 (1) and s 94 (6) (c). 418 M Elliot & R Thomas, Public law (OUP 1ST edn 2011) 484; See also AG v Jonathan Cape Ltd [1975] 3 All

E.R. 419 NIA 1998 Schedule 2, para. 3(c); SA 1998 Schedule 5, para. 7(2); GWA 2006 Schedule 5. 420 C O’Cinneide, ‘Human rights, Devolution and the Constrained Authority of the Westminster Parliament’

(UK Const. L. Blog, 4th March 2013) < http://ukconstitutionallaw.org/2013/03/04/colm-ocinneide-human-

rights-devolution-and-the-constrained-authority-of-the-westminster-parliament/ > Accessed 2 February 2014. 421 Robert Hazell, ‘The Continuing Dynamism of Constitutional Reform’ [2007] 60(1) Parliamentary Affairs 3,

6. 422 C Himsworth, ‘Devolution and its Jurisdictional Asymmetries’ (2007) 70 MLR 31. 423 JUSTICE, Commission on a Bill of Rights: Do we need a bill of rights? JUSTICE’s Response (November

2011) < www.justice.org.uk > Accessed 15 March 2014, 18, para 33. 424 Bell (n 352).

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5.3 Final Thoughts

The complexities and effect of this ‘devolution dimension’ are underestimated in some areas

as merely ‘the tail wagging the dog’.425 The Commission themselves conceded that they did

not fully realise the implications of this being a ‘Kingdom of different nations.’426

What has been shown is that devolution seriously looks to undermine the ‘ownership’ objective

of a UK BoR. There is a strong support for the current human rights system and thus

subsequently little support for a UK BoR, which is needed to be meaningful and effective.427

Varying and contrasting views on human rights make it particularly difficult for such a

document to represent the needs of all and the increasing autonomy of the devolved, especially

regarding Scottish independence and the NI BoR process, evidences that a UK BoR could have

a highly divisive effect; The UK as a union of four countries, is now hanging by a thread.428

More fundamentally, this ownership issue puts the possibility of a BoR being introduced

beyond reality as it becomes apparent that human rights and devolution regimes are no longer

malleable; the UK is not the place it once was.429 Assessing the legal provisions of the statutes

confirms a now common assertion that the possibility of enacting a UK BoR relies substantially

on the ‘unlikely’ consent of the devolved.430

425 P Sands & H Kennedy, ‘In Defence of Rights’ in Commission on a Bill of Rights, ‘A UK Bill of Rights: The

Choice before us’ 18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013. 426 See M Elliot, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’ [2013]

EHRLR 137-151; referring to the Commission on a Bill of Rights, ‘A UK Bill of Rights: The Choice before us’

18 December 2012 Vol. 1 < http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013, 18, para 43. 427 Wadham (n 397) 35. 428 BBC News, ‘Scottish Independence: Seven Months to Save UK, Cameron Says’ BBC (7 February 2014 <

http://www.bbc.co.uk/news/uk-politics-26071166 > Accessed 10 February 2014. 429 Harvey (n 394). 430 JUSTICE (n 390).

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CHAPTER 6

Conclusion

The UK constitution is not what it once was. In this BoR context what has to be realised is that

the surrendering of power431 to a now ever encroaching EU and the domestic shift to a more

federal UK, means that Parliament’s ability to alter human rights, in practice, is greatly

restricted.

In framing the underlying issues with the HRA and its relationship with the Convention system

and considering current political attitudes,432 it has been highlighted that a change in UK human

rights law is inevitable. In utilising the BoR Commission report433 and its subsequent

criticisms434 two very different BoR models were put forward as possible future reform.

However in grappling first with the European legal framework and then second with the

domestic devolution factor, it becomes apparent that such future reform would prove

particularly difficult, if not impossible.

Although the common reasons for the supposed difficulty of enacting a UK BoR decoupled

from the ECHR do not totally stand up to analysis, it is the current and future effects of the

Lisbon Treaty’s legal changes which make such a model improbable. The effect of the EU’s

accession to the ECHR has clearly not been realised. Furthermore, the Convention system, via

the Charter of fundamental rights now legal affect, is basically reintroduced into the UK. This

restricts the effectiveness of any future change. The clear and direct effect of the Charter has

been recently evidenced by Chris Grayling’s attempt to limit its applicability within the UK.435

Directing attention domestically, the devolution aspect seems to put a final nail in the coffin of

a UK BoR being possible. An ECHR incorporating UK BoR would not fulfil its ‘ownership’

objective when thought is given to the fact that the UK is now anything but united, especially

when it comes to human rights. Harvey states that the UK BoR solution is ‘invested with

431 ECA 1972. 432 M Brown, ‘Scrapping Human Rights Act is a priority for the Tories, vows Theresa May’ Express (October 1st

2013) < http://www.express.co.uk/news/uk/433498/Scrapping-Human-Rights-Act-is-a-priority-for-the-Tories-

vows-Theresa-May > Accessed 18 February 2014. 433 Commission on a Bill of Rights, ‘A UK Bill of Rights: The Choice before us’ 18 December 2012 Vol. 1 <

http://www.justice.gov.uk/about/cbr > Accessed 2 January 2013 434 Elliot M, ‘A Damp Squib in the Long Grass: The report of the Commission on a Bill of Rights’, [2013]

EHRLR 137-151. 435 O Bowcott, UK Government to Use Court Case to Establish Limitations of EU Charter’ The Guardian (29th

January 2014) < http://www.theguardian.com/law/2014/jan/29/uk-government-court-case-establish-limitations-

eu-charter > Accessed 5 February 2014.

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expectations of national renewal that it can never meet.’436 This lack of ownership then

undermines the possibility completely as it is illuminated that due to the effect of the

devolutions statutes and the Sewel convention, any HRA replacement would require the

consent of the devolved. JUSTICE stated that they see any ‘agreement on a system which

reflects – and respects – the devolution settlement’ as impossible.437

The original question posed by this dissertation was whether a UK BoR would be possible

considering the implications of the European and domestic constitutional landscape in the UK?

In the view of this author the effect of the discussed implications on both models strongly puts

such possibility for now, beyond reach.

436 C Harvey, ‘Taking the Next Step? Achieving another Bill of Rights’ [2011] 11 (1) European Human Rights

Law Review 24. 437 JUSTICE, Commission on a Bill of Rights: Do we need a bill of rights? JUSTICE’s Response (November

2011) < www.justice.org.uk > Accessed 15 March 2014.

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