After what was arguably the least exciting General Election campaign in recent years, Election 2015 sprang into life the minute the polls closed, with a shock exit poll predicting a massive swing towards the Conservatives but falling short of an overall majority. People questioned the accuracy of this exit poll due to its divergence from preceding opinion polls and ultimately, it was inaccurate: it under-estimated the Conservatives’ performance who ultimately emerged with an overall majority. In this post, I want to outline what this means for human rights in the UK for the next five years. I will focus principally on the judicial mechanisms by which an individual can vindicate his or her rights against the state and the potential changes to these mechanisms. The implications of an in/out referendum on the EU which will, of course have rights implications are beyond the scope of this brief blogpost.
Repeal of the Human Rights Act
The Conservatives’ intention to repeal the Human Rights Act 1998 (HRA) is no secret, constantly referring to it as ‘Labour’s Human Rights Act’ in its manifesto. In terms of the substantive content of the norms to be included in a future Bill of Rights, it is hard to imagine how these would look any different to the norms in the ECHR. For example, the Conservative manifesto places emphasis on the fact that Strasbourg hampered the deportation of ‘suspected terrorists such as Abu Qatada’. The deportation of Abu Qatada to Jordan was delayed after the ECtHR found a breach of Article 6 (right to a fair trial) arising from risk that evidence obtained by torture could be used against him.
A new Bill of Rights would undoubtedly still prohibit torture – a jus cogens norm of international law; however, the degree to which this rights could be vindicated could be significantly watered down thus rendering protection notional. This could be done by, for example, increasing the threshold of proof required of the risk of torture before a deportation could be blocked.
Related changes would be curtailing the extra-territorial applicability of the Convention to British armed forces overseas. The ‘Fog of Law’ report produced by Policy Exchange – and excellently critiqued by Jane Rooney on this site – seems likely to form the basis of this change, in particular seeing as Michael Gove, the new Justice Secretary was a former chairman of that think-tank.
Breaking the formal link between Strasbourg and the Supreme Court
The Conservative manifesto pledged to 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.’
It is difficult to see how this is in any way different to section 2 of the current HRA which obliges UK courts to ‘take into account’ Strasbourg jurisprudence; it does not say that UK courts must follow Strasbourg jurisprudence. The courts’ initial approach to section 2 of the HRA was (for want of a better word) quite conservative, with Lord Bingham famously stating that the duty of domestic courts is to ‘keep pace with Strasbourg jurisprudence as it evolves over time: no more but certainly no less’. UK courts thus would follow Strasbourg jurisprudence unless there were any ‘special circumstances’ not to. However, in recent years, UK courts have appeared much more willing to disagree Strasbourg judgments, for example in areas where the UK courts felt Strasbourg insufficiently appreciated particular aspects of UK domestic law.
The idea of making the Supreme Court supreme is, according to Roger Masterman, misguided as the Supreme Court is not and never was supreme. Ultimately, the final arbiter on rights in the UK is Parliament as is evident from the rather pyrrhic remedy that is a section 4 declaration of incompatibility. Indeed, even where Strasbourg has found provisions of UK law incompatible with the ECHR, such as the absolute ban on prisoners voting, the UK Parliament has chosen simply to ignore this judgment. Plans to recalibrate the balance of power between Parliament and the Supreme Court on one side, and the ECtHR on the other, are therefore based on fixing a problem that does not exist.
While these changes would be damaging to human rights protection in the UK, the ramifications would be felt far beyond. A UK led assault on the ECtHR, an international body already increasingly worried about challenges to its legitimacy, would only give Russian hostility towards the Convention renewed impetus. Russia is also failing to move on prisoner enfranchisement; additionally, it is also in the area of LGBT rights protection in Russia that the damage to the ECtHR’s legitimacy would be severely felt. Furthermore, the UK’s hostility towards the extra-territorial application of human rights protections to its armed forces would, by extension weaken the already remote possibility of holding Russia accountable for involvement in Ukraine.
Changes to Judicial Review
Although plans to scrap the HRA will be the headline-grabbing story, the HRA itself is, of course, not the only mechanism by which an individual can challenge the exercise of a public power. Classic administrative law or judicial review is still the predominant route. Indeed, this has gained renewed attention in recent years following cases such as Osborn v Parole Board, A v BBC, Kennedy v Information Commissioner, and Pham v SSHD; all of which suggested that UK courts are putting a renewed emphasis on common law rights or common law mechanisms of rights protection.
The previous Tory-led government already introduced significant changes in the form of the Criminal Justice and Courts Act 2015 that do not bode well for judicial review for the next five years. In particular, section 84 states that the High Court:
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
Section 84(2) also allows the court to refuse to grant leave to make an application for judicial review if the outcome for the applicant would have been substantially different if the conduct complained of had not occurred.
Initially, these changes were roundly criticised by misrepresenting the function of judicial review. A slight illegality is still an illegality; regardless of the impact on the individual. These changes were slightly watered down by amending the Senior Courts Act 1981 to allow the courts to disregard this if it considers that it is appropriate to do so for reasons of exceptional public interest; however, the aforementioned criticism still stands.
Other changes to judicial review, for example restricting representational standing by changing wording of s31(3) of the Senior Courts Act 1981 from ‘sufficient interest’ to direct interest’ were ultimately dropped following forceful objections raised by charities. Nevertheless, if the view of former Lord Chancellor Chris Grayling that judicial review is a ‘promotional tool for countless left-wing campaigners’ still pervades cabinet, these proposals may again be revisited.
Cuts to legal aid
On a more practical level, an individual’s ability to challenge the exercise of public power is limited by their financial resources. Legal Aid reforms made in the last Parliament were substantial and had a serious impact on access to justice. While some changes were found to be unlawful, reforms in the area of legal aid for criminal cases, introducing a two-tier contracting arrangement that will reduce the number of firms by two-thirds, were found to be lawful. With austerity on the agenda for the next five years, cuts to legal aid may once again be on the cards.
Conclusions: There is a crack in everything; that’s how the light gets in
While all of the above paints a bleak picture, the Conservatives may not have everything their own way. Firstly, repealing the HRA is not as straightforward as it may prima facie appear. The Good Friday Agreement requires rights protections in Northern Ireland to be equivalent to that in the Republic. The HRA was the UK’s primary mechanism in which this obligation was fulfilled and Ireland reciprocated with the passing of the European Convention on Human Rights Act 2003. Any repeal of the HRA will therefore raise questions of international law and possible tensions between London and Dublin. These may be particularly fraught depending upon the outcome of Ireland’s 2016 General Election and subsequent government composition.
Moreover, it is not clear how Scotland or Wales will react to the proposed repeal of the HRA. Scotland is notably less wedded to the infallibility of parliamentary sovereignty. Had Scotland voted Yes to independence, its proposed constitution would have permitted courts to strike down legislation if it was incompatible with the ECHR, thus going far beyond the HRA’s section 4 declaration of incompatibility. Already there have been murmurs from Scotland that plans to repeal the HRA will be met with staunch opposition.
Indeed, even within the Conservative Party, prominent Tory backbenchers such as Kenneth Clarke, Dominic Grieve and Damian Green have been vocal in their support of human rights and may be loath to support repeal of the HRA.
Finally, there is the House of Lords which has, in the recent past, shown itself to be more willing than the House of Commons to defeat legislation on the basis of human rights concerns. The House of Lords was pivotal in blunting some of the harsher proposed changes to judicial review in the Criminal Justice and Courts Act 2015. During the debate on these reforms, Lord Pannick articulated a vociferous criticism of then Lord Chancellor Chris Grayling regarding his attitude towards judicial review and the courts:
However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament.
Voices like this will undoubtedly become more vocal in the months and years ahead. From a human rights perspective therefore, there is hope. Although the next five years may look bleak, there is, nevertheless a crack in everything; that’s how the light gets in.
 Abu Qatada v UK Application no. 8139/09 (17 January 2012) http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108629
 Richard Ekins, Jonathan Morgan and Tom Tugendhat, ‘Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat’ (Policy Exchange, 2015) < http://www.policyexchange.org.uk/images/publications/clearing%20the%20fog%20of%20law.pdf>
 Jane Rooney, ‘Clearing the Fog’ Recommends ‘No Fault’ Full Compensation’ (Human Rights In Ireland, 2 April 2015) < http:// http://humanrights.ie/international-lawinternational-human-rights/clearing-the-fog-recommends-no-fault-full-compensation/>
 Ullah v Special Adjudicator  2 AC 323, 350.
 R(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  UKHL 23.
 R v Horncastle & Others  UKSC 14
 Roger Masterman, ‘A Tale of Cometing Supremacies’ (UK Constitutional Law Association Blog, 30 September 2013) <http://ukconstitutionallaw.org/2013/09/30/roger-masterman-a-tale-of-competing-supremacies>
  UKSC 61
  2 WLR 808
 2 WLR 808
  UKSC 19
 Mark Elliott, ‘Judicial Review Reform — The Report of the Joint Committee on Human Rights’ (UK Constitutional Law Association Blog 1 May 2014) http://ukconstitutionallaw.org/2014/05/01/mark-elliott-judicial-review-reform-the-report-of-the-joint-committee-on-human-rights/
 Introducing a residency requirement in order to qualify for legal aid was found to be the unlawful exercise of a public power for an improper purpose in Public Law Project v The Secretary of State for Justice and The Office of the Children’s Commissioner  EWHC 2365.
 R (London Criminal Courts Solicitors Association) v Lord Chancellor  EWHC 295
 CAJ Committee on the Administration of Justice, ‘Clarification of Government Policy on HRA 1998 and Compliance with GFA’ (CAJ 11 May 2015) <http://www.caj.org.uk/files/2015/05/11/CAJ_correspondence_to_SOS_re_HRA_May_20151.pdf>
 ‘Tories’ repeal of Human Rights Act will spark constitutional crisis, erode civil liberties – experts’ (RT 11 May 2015) http://rt.com/uk/257469-tory-human-rights-act/
 Alan Travis, ‘Grieve, Clarke and Green were last protectors of our human rights laws’ (The Guardian 15 July 2014) http://www.theguardian.com/law/2014/jul/15/grieve-clarke-green-human-rights-conservatives-europe
 Lord Pannick, House of Lords Criminal Justice and Courts Bill Debate, 21 January 2015.
Image credit: Pedro Szekely (2004) http://bit.ly/1J6a2qk