THE BLOG
16/06/2015 07:39 BST | Updated 14/06/2016 06:59 BST

Will the UK Supreme Court Really Become the Ultimate Arbiter of Human Rights Matters in the UK?

This is not just a domestic matter for the UK - the Belfast Agreement was endorsed by referenda in the Irish Republic and Northern Ireland and incorporated into an international treaty with the Irish Republic, which was deposited with the UN. It certainly cannot be changed without the consent of the Irish Republic.

The manifesto on which the Conservative Party fought the General Election on 7 May 2015 made the following commitment:

"The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK." (page 60)

These measures were mooted last October in a Conservative strategy paper, entitled Protecting human rights in the UK.

European Court of Human Rights is the ultimate arbiter now

The manifesto omits to mention that, at present, the UK is under an international treaty obligation to accept the European Court of Human Rights based in Strasbourg as "the ultimate arbiter of human rights matters in the UK". The treaty in question is the European Convention on Human Rights, which the UK had a large part in drawing up and to which the UK has been a party for over 60 years.

Article 46(1) of the Convention states:

"The High Contracting Parties undertake to abide by the final judgment of the [European] Court [of Human Rights] in any case to which they are parties."

So, as long as the UK remains a party to the Convention, it is obliged to abide by the final judgment of the European Court in any case to which it is a party, including in cases where the judgment of the European Court conflicts with that of the UK Supreme Court. In other words, as a party to the Convention, the UK has an existing international treaty obligation to accept the European Court as "the ultimate arbiter of human rights matters in the UK".

Will the Government withdraw from the Convention?

Of course, the UK could withdraw from the Convention and dispense with this international treaty obligation - and the UK Supreme Court would then become "the ultimate arbiter of human rights matters in the UK".

But the Conservative manifesto does not make a specific proposal to that effect and subsequent to the election, the Government has refused to rule in or to rule out withdrawal from the Convention. In the House of Commons on 28 May, in answer to questions from Yvette Cooper for Labour, Michael Gove, who as Minister of Justice is responsible for implementing these proposals, refused three times to do so. The Prime Minister himself was equally evasive at PMQs on 3 June.

The UK Supreme Court: the ultimate arbiter in practice?

So, what will the Government do about the Convention? Answer: probably, nothing. So, how will it achieve its manifesto commitment to "make our own Supreme Court the ultimate arbiter of human rights matters in the UK"? Answer: it will probably attempt to achieve it in practice by refusing to abide by the relatively few judgments of the European Court that it doesn't approve of and/or are at variance with those of the UK Supreme Court.

Of course, this will mean that in each case the UK will breach its international treaty obligation, as a party to the Convention, to abide by judgments of the European Court. Theoretically, the UK could get expelled from the Council of Europe, the body responsible for the Convention, for failing to do so, but in practice expulsion is inconceivable.

However, failing to do so will undermine the UK's ability to lecture other states around the world about failing to honour international treaties and abide by international law. But, from that point of view, withdrawing from the Convention would be much worse. How could the UK seek to persuade states to submit to international systems of justice like the International Criminal Court if the UK itself withdraws from the jurisdiction of the European Court of Human Rights, because it didn't like a few of its judgments?

A British Bill of Rights

In addition to making the UK Supreme Court "the ultimate arbiter of human rights matters in the UK", the Conservative manifesto promised to "scrap the Human Rights Act, and introduce a British Bill of Rights".

The Human Rights Act, which was passed by the Labour Government in 1998, put the European Convention on Human Rights into UK domestic law and enabled individuals to have their Convention rights enforced in UK domestic courts without having to take a case to the European Court. However, it continued to be open to individuals to do that if they wished.

In upholding an individual's Convention rights, Section 2 of the Human Rights Act obliges UK courts to "take into account" any "judgment, decision, declaration or advisory opinion of the European Court of Human Rights". This attempts to ensure that decisions by UK courts are in harmony with the superior European Court.

The British Bill of Rights the Conservatives propose as a replacement for the Human Rights Act will also write the European Convention into domestic law. But, assuming the principles outlined in last October's strategy paper are reflected in the Bill, some of the rights enshrined in the Convention will be qualified significantly. For example, the strategy paper says:

"Our new Bill will clarify ... limitations on individual rights in certain circumstances. So for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 [right to family life] to prevent the state deporting them after they have served their sentence."

Furthermore, unlike the Human Rights Act, the British Bill of Rights will not oblige UK courts to take account of rulings by the European Court of Human Rights.

However, assuming the UK remains a party to the Convention, an individual will still have the right to take a case to the European Court and potentially have a judgment of the UK Supreme Court overridden. Because the British Bill of Rights is going to contain a qualified version of the Convention rights and will not oblige the UK Supreme Court to take into account rulings by the European Court, it is likely that the judgments of the UK Supreme Court will diverge to a greater extent than before from those of the European Court.

If they diverge, which judgment is the Government going to apply? Presumably, a Government committed to the UK Supreme Court being "the ultimate arbiter of human rights matters in the UK" will always apply its judgments. This could mean the Government deporting a foreign national even though the European Court had declared that to be in breach of the Convention.

Will the proposals be implemented?

It is possible that Government's proposals won't be implemented. True, in the Queen's Speech on 27 May, the Government undertook to "bring forward proposals for a British Bill of Rights". Here, it is worth noting that in last October's strategy paper the Conservative Party promised to "shortly publish a draft British Bill of Rights and Responsibilities for consultation" but it didn't. Now the Government isn't even promising to publish a draft bill, merely to bring forward proposals for one.

If a Bill eventually emerges, it is by no means certain that the Government will be able to get it through the House of Commons. The Government's overall majority in the Commons is slim and several of its senior backbenchers are opposed, for example, Dominic Grieve (former Attorney General), Kenneth Clark (former Minister of Justice), David Davis (former shadow Home Secretary), Damian Green (former justice minister) and Andrew Mitchell (former Chief Whip). And, with the possible exception of the Unionist parties from Northern Ireland, it is not going to get any assistance from the opposition parties to pass the Bill.

Implications for Northern Ireland

Repealing the Human Rights Act, as the Government is proposing, would have serious implications for the political settlement in Northern Ireland. The 1998 Belfast Agreement, which formed the basis of that settlement, includes a commitment by the UK Government to "complete incorporation into Northern Ireland law of the European Convention on Human Rights with direct access to the courts, and remedies for breach of the Convention". This was achieved by the Labour Government passing that Human Rights Act for the UK as a whole in 1998.

It would be a clear breach of the Belfast Agreement to repeal this Act, unless the Convention was put into Northern Ireland law by other means. The proposed British Bill of Rights would not suffice since the indications are that it will contain a modified version of the Convention.

This is not just a domestic matter for the UK - the Belfast Agreement was endorsed by referenda in the Irish Republic and Northern Ireland and incorporated into an international treaty with the Irish Republic, which was deposited with the UN. It certainly cannot be changed without the consent of the Irish Republic.