In a document entitled "Protecting the human rights in the UK" the Conservative Party presents their plan for human rights, namely: 1) repeal the Human Rights Act 1998 ("HRA 1998"), 2) put the text of the original Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") into primary legislation and 3) clarify the ECHR rights to reflect a proper balance between rights and responsibilities.
Practically speaking, this proposal would mean that the European Court of Human Rights ("ECtHR") would no longer be binding over the UK Supreme Court, nor be able to order a change in UK law.
However, as it currently stands, the ECtHR is not binding over the Supreme Court and cannot change UK legislation.
Misconceptions about the HRA 1998
The Party states that the HRA 1998 "undermines the sovereignty of Parliament". Parliamentary sovereignty is enshrined in the HRA 1998. Indeed, when courts issue a declaration of incompatibility of primary legislation with a Convention right, such a declaration is not binding on the parties to the proceedings in which it is made and the incompatible legislation remains in force until Parliament decides to amend the law. Parliamentary sovereignty is therefore protected.
However, as it currently stands, the ECtHR is not binding over the Supreme Court and cannot change UK legislation.
The Conservative Party states that the HRA 1998 "undermines the sovereignty of Parliament". Parliamentary sovereignty is enshrined in the HRA 1998. Indeed, when courts issue a declaration of incompatibility of primary legislation with a Convention right, such a declaration is not binding on the parties to the proceedings in which it is made and the incompatible legislation remains in force until Parliament decides to amend the law. Parliamentary sovereignty is therefore protected.
Potential impacts on immigration cases
The Party clearly seeks to limit the use of human rights in deportation of foreigners' cases. Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (protection of private and family life) are targeted as being illegitimate and abusive grounds of appeal for foreigners. The Conservative Party further wishes to give the concept of "degrading treatment or punishment" under Article 3 a more accurate definition. However, there is already an extensive body of ECtHR case law, which illuminates this concept quite clearly. It is, indeed, worth noting that the ECtHR always approaches this concept in concreto, that is to say based on each applicant's circumstances.
Moreover, they rely on a "proper balance between rights and responsibilities" to limit the use of Articles 3 and 8 to foreigners. The doctrine of proportionality that is already applied by the ECtHR already ensures that such a balance is in force. This doctrine, which is at the heart of the Convention, is the core mechanism of an effective balance between citizens' rights and States' inference "in a democratic society". Every judgment of the ECtHR attaches great importance to this doctrine.
The Party's willingness to reduce the scope of Article 8, combined with the new Part 5A of the Nationality, Immigration and Asylum Act 2002 inserted by the Immigration Act 2014, may lead to too little weight being given to applicants' private lives.
Towards a weakening of human rights in the UK?
The Party affirms that the HRA 1998 goes far beyond the UK's obligations under the Convention. Amongst other propositions, it is stated that some alienable rights won't apply to cases of deportation. By definition, alienable and universal rights cannot be restricted or limited to a certain category of citizens. The 1948 Universal Declaration of Human Rights, on which the ECHR is based, is introduced with the following words: "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". It is therefore worrying to read that the Conservative Party's plans to "limit the use of human rights to the most serious cases". Human rights reside, indeed, in each sphere of every day's life, from birth to death, no matter the immigration status or the criminal record.
After reading this paper, several questions are left unanswered: what effect will the repeal of the HRA 1998 have on current immigration cases where human rights are a core aspect of the case? How the acts of public authorities' lawfulness will be dealt with? This question is of particular importance for people who seek judicial review of public authorities' acts under either the HRA 1998 or the ECHR.
The Party's plans may lead to the weakening of human rights in the UK, especially for foreigners who seek asylum on the basis of Articles 3 and 8. As written by Dominic Grieve in 2009, the Convention and the UK adherence to it "are a key benchmark of our shared values as a nation".
Gherson
17 October 2014