A very British incorporation

Issues: Human Rights

The Government is right to call for a British Human Rights Act but it should go one step further, believes Jonathan Cooper. Jonathan Cooper is legal director of Liberty. The incorporation of the European Convention on Human Rights was a central feature of the Labour Party's manifesto. On 24 October 1997, that commitment was translated from a statement of aspirational theory to practical reality. The Government's Human Rights Bill was published alongside its explanatory White Paper Rights Brought Home.

Debate as to the nature of incorporation has centred on the impact which the Human Rights Act will have on primary legislation. It is accepted that the legislation will apply to subordinate legislation and acts of the Executive. The issue focused on models from Canada – where the courts can read rights into primary legislation, and New Zealand, where the courts have no such powers. The Hong Kong model – a hybrid of the above – and the European Communities Act 1972, which makes clear the supremacy of Community law, were also put forward as options. The Government has, however, sought to distance itself from these alternatives.

The Bill is a sensitively drafted document which seeks to guarantee effective human rights standards while retaining parliamentary sovereignty. All courts and tribunals will have jurisdiction to hear human rights arguments and, where possible, primary legislation and subordinate legislation “will be read to give effect in a way which is compatible with the convention rights”.

Where primary legislation is incompatible with the convention, the legislation takes precedence over the Act. It will then be left to the higher courts to make a declaration of incompatibility. Once such a declaration is made, the relevant minister must take fast-track remedial action to amend the offending section of legislation by order in council. These remedial orders are to be subject to the affirmative procedure in both Houses of Parliament. The Bill also allows for an emergency procedure.

This fast-track process gives the Human Rights Bill its British flavour. That said, there are self-evident concerns about remedial orders and declarations of incompatibility. For example, the declaration has no effect on the legislative provision to which it relates, and it does not bind the particular proceedings. Further, there is no requirement on a minister to amend the offending legislation.

However, the system does enable Parliament to retain ultimate control of the legislative process. Victims of human rights violations can still pursue an application to the Court of Human Rights in Strasbourg and, if vindicated there, the Government will be obliged to amend the offending legislation.

Much of the Bill is drawn directly from the convention. Similarly, judicial remedies for breach of the Act must follow the principles applied in relation to the award of compensation under article 41 as amended by Protocol 11. Remedies will therefore come primarily in the form of declaratory relief with limited opportunities for non-pecuniary loss.

The clause of the Bill which looks most pertinent to judicial interpretation is clause 6, which states, “it is unlawful for a public authority to act in a way which is incompatible with one or more of the convention rights”. A public authority includes courts and tribunals and “any person, certain of whose functions are functions of a public nature”.

Parliament is not included. The importance of this clause is that, unless the action concerned is exclusively private, human rights standards will have to be taken into consideration. The White Paper makes it clear that the privatised utilities are included, but the definition of public authority makes it likely that the Act will have an even broader application.

Further evidence that the Government is taking human rights seriously is that it places the current system of derogations and reservation from the convention on to a statutory footing. Derogations, such as that placed on article 5 (3), following the decision in Brogan v UK (1988) 13 EHRR 40, will have to be renewed by Parliament every five years as will reservations. The White Paper also commits to additional Protocols to the Bill.

The Bill, curiously, omits article 13 which guarantees an effective remedy for a violation of a convention right. No doubt the Government will have to justify this absence in debate, and may also result in subsequent litigation in Strasbourg.

There is no provision to establish a human rights commission. The White Paper envisages a new Parliamentary Committee on Human Rights, but whether this can take the place of a commission remains to be seen.

The Bill does establish a new system of statements of compatibility with the convention, whereby a minister in charge of a Bill must state at the outset that the Bill is compatible. This introduction of human impact assessments, placing the current Strasbourg proofing on a statutory footing, is likely to have a far-reaching impact.

Such statements will ensure that a culture of rights is nurtured not only within Parliament and the courts, but also Whitehall and the Executive. The mantle is now passed to Parliament itself to ensure that proper systems of scrutiny are established to guarantee that legislation is effectively assessed in relation to the Act.

Incorporation of the convention will affect all areas of practice. The Government is right to call for a British Human Rights Act but it should be encouraged to go further and create a truly British Bill of Rights with comprehensive systems to ensure effective access to them.