Far more than “limited and specific”: The Government’s Bill of Rights and international law

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In this post, Dr Alexander Orakhelashvili discusses the recently published bill on human rights

Photo of Dr Alexander Orakhelashvili

Dr Alexander Orakhelashvili

The recently published Bill to reform the law of human rights raises multiple issues of international law and UK’s constitutional law. This is not intended to be a full-scale commentary on the Bill, but even the analysis of first few clauses contained in it demonstrates that a clear potential is envisaged that the UK Government’s drastic and large-scale violations of the European Convention on Human Rights would be systemically enshrined in and legitimised under the UK law.

The Bill is clear that “it is the Supreme Court (and not the European Court of Human Rights) that determines the meaning and effect of Convention rights for the purposes of domestic law” (sections 1(2)(a) and 3(1)). And then somewhat surprisingly, the Bill states that “courts are no longer required to read and give effect to legislation, so far as possible, in a way which is compatible with the Convention rights” (section 1(2)(b)). It is not completely clear what the purpose of ascertaining the meaning of the Convention rights is if courts are not bound to read domestic legislation compatibly with those rights. The problem here is not just one of international law in the sense of violating the European Convention, but it also creates a problem for the Supreme Court’s judicial authority in relation to lower courts, as the latter may not be bound by the former’s determinations and interpretations at all.

Section 7(2)(b) of the Bill requires that courts “give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how … a balance should be struck [between individual rights and the public interest] are properly made by Parliament”. First thing that strikes one from the above clause is its similarity to the words “as far as possible” contained in section 3 of the 1998 HRA requiring that domestic legislation be read compatibly with the Convention. Thus, if the ultimate decision on these matters rests with courts, they might as well decide concrete cases the way that appears to contradict the Parliament’s intentions and policies (i.e. by stating that it is not possible to give to the above principle a weight greater than one that the court chooses to give to it). Therefore, the position purported to be created by this Bill would differ little from the position that already forms part of HRA. But most importantly from the point of view of UK’s constitutional law, the Bill essentially contradicts the common law pattern of distribution of authority as between courts and the Parliament in the sense that, under common law, courts have the final authority on the interpretation of any Act of Parliament whatsoever, and Parliament’s own re-affirmation of its legislative prerogatives in the text of a statute does not add to or increase the extent of those prerogatives that are ultimately determined by the Constitution.

Section 7(2)(b), together with section 1(2)(c) of the Bill which states that “courts must give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about the balance between different policy aims, different Convention rights and Convention rights of different persons are properly made by Parliament”, further amounts to the direct and drastic challenge to the European Court’s authority to supervise the member-States’ exercise of the margin of appreciation and to autonomously determine the meaning of those provisions of the Convention whose meaning may be contested from country to country. This concept of “autonomous meaning” of ECHR provisions is meant to prevent States-parties to engage in unilateral interpretation of the Convention provisions – a type of interpretation that the Bill purports to validate as a matter of domestic law.

Section 1(3) of the Bill states that “judgments, decisions and interim measures of the European Court of Human Rights—(a) are not part of domestic law, and (b) do not affect the right of Parliament to legislate.” This clause envisages not simply a departure of a sometimes contested position stated in section 2 HRA obliging courts to give due regard to ECHR decisions, but also a wholesale and full-scale challenge to the role and authority of the European Court to supervise the member-States’ compliance with the Convention. The Court would simply be unable to do carry out that task if member-States could freely challenge its interpretations of the Convention and refuse complying with interim measures that are meant to protect the subject-matter of the ongoing litigation before the European Court.

More broadly, moreover, the above sections 1(2)(a) and 3(1) purport to confer to the Supreme Court the plain licence to breach international law anytime and in any case it chooses to do so, and in doing so to rely on the statutory conferral of the authority to do so by interpreting the Convention provisions the way it chooses to. One of the founders of the doctrine of international law Emer de Vattel stated in 18th century that “a clearly false interpretation [of a treaty is] as contrary to good faith as anything could be imagined to be”. Sadly, one dares to disagree, because a false interpretation of a treaty embodying the policy to repeatedly act in defiance to one’s treaty obligations and to the principle of good faith is much worse than a treaty’s one-off violation.

What is, then, the net effect of the above clauses in terms of measuring the UK’s compliance with its international obligations? On the domestic plane, the legal effect envisaged by the Bill would be practically indistinguishable from the effect which the UK’s putative withdrawal from the ECHR would produce. And, as such withdrawal is not being envisaged by this Bill, the latter’s adoption would open the way for an ongoing and persistent non-compliance with the Convention, deepening the conflict with the Strasbourg Court, and entailing more litigation and compensation to pay. Historical factors should not be left out of sight either. The 1991 Brind decision of the House of Lords in which the House of Lords accepted that UK legislation could breach UK’s obligations under the Convention (which was then not incorporated into the UK law) and yet the Courts would apply that legislation, was one of the factors that led to the adoption of 1998 Human Rights Act which this Bill purports to modify.

Article 27 of the 1969 Vienna Convention on the Law of Treaties states that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”, and on that position, the adoption of the Bill would entail placing the UK in the position of continuing and recurrent violation of the Convention. The qualification of UK’s domestic legal decisions as wrongful would not be altered either. Article 3 on State responsibility adopted by the International Law Commission of the UN in 2001 states that “The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.” In the commentary to that Article, the Commission was at pains to emphasise that “An act of a State must be characterized as internationally wrongful if it constitutes a breach of an international obligation, even if the act does not contravene the State’s internal law—even if, under that law, the State was actually bound to act in that way.” It is also a commonplace, as stated by the World Court a century ago, that “From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures.”

In terms of what other States-parties have done in this area, the only comparable example is Russia. In 2020, Russian Constitution was changed to prevent domestic implementation of international treaties if that would contradict the Constitution, and to endow the Constitutional Court to adopt interpretation of treaties that bind all courts domestically, whatever the position on the international plane (Articles 79, 124, see here for further analysis). The proposed Bill is more far-reaching in that it enables practically all domestic courts to act in defiance to the European Convention. The position endorsed by the Bill is more similar to the position that has materialised in Russia after the latter’s withdrawal from the Council of Europe further to the Ukraine crisis and consequent adoption of the legislation denying domestic legal effect to ECHR decisions rendered after 15 March 2022.

A couple of years ago, the government was admitting that a Bill relating to Northern Ireland issues would breach international law in a limited and specific way. Some of that approach has been replicated later on. The Bill discussed here would have far more drastic implications. While carrying the risk of domestic validation of specific breaches of the Convention, the Bill most problematically embodies the policy of contempt towards the overall architecture of the European Convention, with the central interpretative role of the European Court of human Rights at its heart. If the ministerial opinion stated at the outset of the Bill that “the provisions of the Bill of Rights Bill are compatible with the Convention rights” were to be presented as a statement of fact, it would need to be complemented by the words “as interpreted and applied by UK’s public authorities”. That would provide a more accurate statement of the aims and policies pursued by this Bill.

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