Protecting other people’s rights or our own? The UK and the ECHR Helen Hardman, University of Glasgow Magna Carta is considered the blueprint for the first human rights conventions: the Universal declaration on Human Rights and the European Convention on Human Rights (ECHR) and, crucially, the UK played a fundamental role in their design. These treaties were drawn up at the international and European level through the realisation, following two world wars, that rights need protecting across borders to prevent conflict. Contracting parties expressed their shared values in the ECHR for the purpose of maintaining peace in Europe.1 In this vein, many envisaged the ECHR would operate as an inter-state ‘collective pact against totalitarianism’ to be invoked against states only in extreme cases. Others, however, conceived it as a European Bill of Rights.2 Ultimately, the provisions in the ECHR, as first articulated, reflect the pragmatism of compromise between the states parties to devise and launch ‘workable institutions’ rather than theoretical debates about the relationship between the individual and state and society.3 Since then, states have opted to recognise additional rights through ratifying supplementary protocols to the Convention, although not all states have ratified each of these, and the “Court has been cautious not to interpret the Convention contrary to the will of the states.”4 In the context of Magna Carta, the tension between balancing executive powers (over the issue of security) with the public’s civil rights first occurred in 1341 when Edward III enacted a law that granted broader powers of arrest and imprisonment without trial Numerous complaints that the law contravened the right to a fair trial, as articulated in Art.29/39 of Magna Carta, were heeded and the law was repealed .5 In 1369 Edward III introduced a statute which required that every law enacted must be compatible with the rights enshrined in Magna Carta.6 600 years later, the 1998 Human Rights Act updated and renewed the tradition of the Magna Carta7 by incorporating the European Convention into UK law.8 However, since 2004 the European Court has issued a number of judgments to the UK Government that have led to conflict over the issue of parliamentary sovereignty: and a refusal to implement the European Court’s judgments over voting rights for prisoners and review of 1 A. Mowbray (2014), ‘Between the will of the contracting parties and the needs of today’ in E Brems and J. Gerards (eds), Shaping rights in the ECHR: the role of the European Court of Human Rights in determining the scope of human rights Cambridge University Press, pp. 17-37, 20, citing Greer 2006: 56 2 Ibid. 3 Ibid. 4 Ibid, p.36. 5 R. Turner (2003), Magna Carta through the ages, Pearson, pp.122-124. 6Ibid, p. 116. 7Ibid, pp.195-196 8 S. Besson (2008), ‘The reception process in Ireland and the United Kingdom’ in H. Keller and A. Stone Sweet, A Europe of Rights: the impact of the ECHR on national legal systems, Oxford University Press, pp.31-32. 1 sentences to life imprisonment. As Colin Murray (2013) and others have demonstrated, these judgments do not diverge from the UK’s legal traditions on these issues. Nonetheless, in October 2014 the Conservative Party pledged to repeal the UK Human Rights Act and withdraw the UK from its obligations under the European Convention. This paper investigates how stakeholders in the UK and other Council of Europe states view the UK government’s failure to comply with the European Convention and the implications of the UK’s stance for the Convention system, the UK and other states. The research is based on desk-research and interviews conducted between 2012 and 2015 with representatives from Council of Europe institutions, academics, parliamentarians and NGOs from a variety of states across Europe. Celebration of Magna Carta and current Human Rights protection in the UK In 2015 the Government arranged a number of events to commemorate 800 years of Magna Carta, because traditionally the UK puts great store by the rule of law, compliance with international law and claims to have a leading role in the world that field. Some in the legal community, however, have remarked that the Government is celebrating this tradition “with one or two blind spots:”9 They consider that the right to a fair trial as first articulated in Magna Carta (and now provided under Article 6 of the ECHR) has come under attack in the UK as the result of cuts to legal aid and higher court fees, essentially making litigation increasingly prohibitive for the majority of people in the UK. The sharp increase in court fees exceed actual court costs10 and are designed to generate revenue, so these are best interpreted as a form of taxation.11 Since 1975, access to justice has been interpreted as an integral part of the right to a fair trial,12 and so these regulations might be the next issue to arrive at the Strasbourg Court.13 The channel of judicial review, also equates with individuals’ right of access to justice as provided under Article 6 of the ECHR.14 Moreover, the courts’ capacity to challenge decisions made by Government through this mechanism is a fundamental basis to the separation of powers and the system of checks and balances between these. This is another mechanism which was threatened in 2014 by a bill introduced by the Minister of Justice and Lord Chancellor, Chris Grayling, to remove judges’ discretion to decide whether a case merited judicial review.15 The bill was rejected by the House of Lords, including a number of Conservative peers, one of whom asserted: “It is unacceptable if we have a system whereby if the government has acted illegally it can’t be brought to account in the courts. The British defence of 9 Interview with * London, February 2015 10 J. Rozenberg (2015), ‘Dramatic increases in court fees causing deep concern, say senior judges’, The Guardian, 19.1.2015 http://www.theguardian.com/law/2015/jan/19/dramatic-increases-court-fees-deep- concern-senior-judges 11 Interview with * London, February 2015 12 Interview with * London, February 2015, See: ECtHR, Golder v UK, 4451/70, 21.2.1975, para. 21 13 Interview with * London, February.2015 14 House of Lords, House of Commons Joint Committee on Human Rights (2014), The implications for access to justice of the Government's proposals to reform judicial review, 13th Report, Session 2013-2014, 9.4.2014, p.17, para.44 15 HC Bill 192, Criminal Justice and Courts Bill 2 freedom is judicial review.” 16 The Parliament’s Joint Committee on Human Rights, the cross-party committee of MPs and peers that scrutinise the compatibility of legislation with the ECHR, strongly criticised the proposed curtailment of judicial review and asserted that the new legal aid regulations will have a chilling effect.17 The committee asserted in their report that reforms introduced by Chris Grayling demonstrated the inherent conflict of interests in the combination of the political role of the Secretary of State for Justice and the duty of the Lord Chancellor to protect the rule of law and the independence of the judiciary since the two roles were merged in 2005.18 “In our view, the Government’s proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice which raises issues which should be considered by a number of parliamentary committees. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice and of the consequent restructuring of departmental responsibilities between the Home Office and the Ministry of Justice.”19 Because of these incursions on the right to a fair trial, a significant proportion of the legal community have objected to the Government’s Magna Carta celebrations,20 which are interpreted as part of a broader narrative by some in Government to justify the repeal of the Human Rights Act and the UK’s withdrawal from the ECHR. The particular issue with which this debate over the withdrawal of the UK from the ECHR began was the Government’s disagreement in 2011 with the European Court’s judgments that the blanket ban on voting for prisoners in the Representation of the People Act 1983 was in breach of the ECHR.21 The sudden standoff between the UK Government and the Council of Europe over this issue was unprecedented.22 16 A. Travis (2014), ‘House of Lords votes against Grayling’s plans to restrict judicial review’ The Guardian, 27.10.2014 http://www.theguardian.com/politics/2014/oct/27/house-of-lords-defeat-chris- grayling-judicial-review-plan 17 House of Lords, House of Commons Joint Committee on Human Rights (2014), The implications for access to justice of the Government's proposals to reform judicial review, 13th Report, Session 2013-2014, 9.4.2014, pp.22-27 18 A. Patrick (2014), ‘Not in our name: Parliamentary committee rejects Government’s case for Judicial Review reform’, UK Human Rights blog, 30.4.2014 http://ukhumanrightsblog.com/2014/04/30/not-in-our-name-parliamentary-committee-rejects- governments-case-for-judicial-review-reform-angela-patrick/ 19 House of Lords, House of Commons Joint Committee on Human Rights (2014), The implications for access to justice of the Government's proposals to reform judicial review, 13th Report, Session 2013-2014, 9.4.2014, p.3. 20 O. Boycott (2015), ‘Justice campaigners propose boycott of Magna Carta anniversary summit’, The Guardian, 1.2.2015 http://www.theguardian.com/law/2015/feb/01/global-law-summit-magna-carta-boycott 21 ECtHR, Hirst v United Kingdom, no.2 (74025/01) 30.3.2004; Greens and M.T.