July 08, 2022
On 22nd June 2022, the UK’s Conservative Government published its so-called “Bill of Rights Bill”, which many are calling a “Rights Removal Bill”. If enacted, the Bill will completely overhaul the UK’s human rights framework by repealing and replacing the Human Rights Act 1998 (HRA), which gives effect to the European Convention on Human Rights (ECHR or the Convention) in UK law. The Government’s proposals have been described as “a wholesale revision of a fundamental feature of the UK constitution”, as “ill-thought out, divisive, and damaging” and as “an ideological attack on human rights that will harm the most marginalised in society disproportionately”. Crucially, although the Bill contains the same catalogue of Convention rights as the HRA, it makes “major changes” to the way those rights are given effect in domestic law. Among other things, it purports to create a “democratic shield” against adverse judgments of the European Court of Human Rights (ECtHR or Strasbourg Court), putting the UK’s continued membership of the Convention system “in jeopardy”.
The Conservative party in the UK has a long-standing record of hostility towards the HRA. This can be seen, for example, in the party’s political manifestos from the last decade (e.g., 2010, 2015, 2017 and 2019). In 2020, the Government established an Independent Human Rights Act Review (IHRAR) to consider how the HRA is operating in practice and whether any change is required. The Independent Panel’s Report was published on 14th December 2021 and, on the same day, the Government published a public consultation “Human Rights Act Reform: A Modern Bill of Rights”. In that consultation document, the Government stated its intention to replace the HRA with a “modern Bill of Rights” and, in several ways, to reduce the influence of the Strasbourg Court on UK law. However, the Government’s proposals go far beyond the IHRAR’s recommendations, which, as others have commented, appear “to have asserted little influence on the government’s proposals”. Similarly, when the Government published its response to the public consultation (on the same day as the Bill itself), it was observed that “the tide of the responses runs starkly in the opposite direction to the changes in the Bill”.
This blog post will focus on the provisions of the Bill relating to the implementation of ECtHR judgments and interim measures. It will then consider the UK proposals in a regional context and the state of play as regards implementation in Europe more widely.
When presenting the Bill to Parliament on 22nd June, Deputy Prime Minister and Secretary of State for Justice Dominic Raab MP was keen to emphasise the UK’s intention to remain a State Party to the ECHR. However, as others have pointed out, this is merely paying “lip service” to the system while the Bill itself proposes “substantially decoupling the UK’s domestic human rights regime from the Strasbourg system.” For discussion of the Bill’s key provisions, see e.g., here and here. Significantly, as others have cautioned, the Bill will “result in the UK being in breach of its obligations under the ECHR more often, making it more vulnerable to adverse rulings by the ECtHR” and the question then becomes – how will the UK respond to such adverse judgments?
We can find the answer to this question in the Government’s consultation document, the Government’s recent statements to Parliament, and in the Bill itself. These send a “clear signal” that the Government does not intend to comply with adverse ECtHR judgments when it does not wish to do so. For example, when presenting the Bill to Parliament, while noting the UK’s strong record of compliance with the Convention, Dominic Raab stated (col 862):
“However, rarely but on occasion, there will be moments of mission creep where the goalposts shift. Prisoner voting was an example where we said, “Actually, that is not something that Parliament would accept.” I was the Justice Minister in 2015 who went to the Committee of Ministers and said, “We believe in staying in the European convention, but we feel that the ruling is wrong on principle. We are not going to give prisoners the vote.” We will maintain our high standards of compliance, but when it comes down to it, the final word must stay with this House on critical issues of national importance”.
Later, Raab stated (col 864) that the Government is seeking to reform the UK’s relationship with the ECtHR in several ways including, importantly, “by making sure… that there is the equivalent of a democratic shield, as we relied on in relation to prisoner voting, but reinforced and made clearer, so that when it comes to the shifting goalposts, whether under judicial interpretation at home or abroad, Parliament has the last word” and “in relation to rule 39 interim orders”.
This language of creating a “democratic shield” was previously seen in the Government’s consultation document, which put forward several suggestions for how this might be achieved (at paras 309-318). Two of the relevant proposals find a home in the new Bill. First, the consultation document proposed a formal requirement for government to give notice of adverse ECtHR judgments to Parliament. This was welcomed, for example, by the UK’s parliamentary Joint Committee on Human Rights (JCHR) and is taken forward in Clause 25 of the Bill. Second, while acknowledging that States Parties are required under Article 46 to implement ECtHR judgments, the consultation document proposed including “a legislative provision that affirms Parliamentary sovereignty in the exercise of the legislative function, in the context of adverse Strasbourg rulings”. Clause 1(3) of the Bill affirms that “judgments, decisions and interim measures of the European Court of Human Rights—(a) are not part of domestic law, and (b) do not affect the right of Parliament to legislate”. This is largely similar to the draft clause proposed in the consultation document, though notably it adds “interim measures” (undoubtedly in response to interim measures granted by the ECtHR in relation to the UK’s migration partnership with Rwanda, discussed further below). Failing to implement the Court’s judgments would be a clear breach of the UK’s international obligations under Article 46 of the Convention and, as my colleague Katie Lines commented, “if maintained over time, would become incompatible with the UK’s continued membership of the ECHR system”.
During the public consultation, concerns were raised about this aspect of the Government’s proposals. For example, in its response to the consultation, the human rights organisation, Liberty, emphasised that the obligations in Article 46 do not affect the domestic constitutional principle of Parliamentary sovereignty, and moreover that “there is already scope for States Parties to negotiate over the implementation of ECtHR judgments as illustrated by the compromise reached on the issue of prisoner voting rights”. (It is interesting to consider in this context the February 2011 parliamentary debate on prisoner voting, which was seen by some as a “threatened democratic override”.) In its response to the consultation, the Law Society of England and Wales also expressed concern about the potential impact of the Government’s approach which it said “could be seen as demonstrating an intent to refuse to follow adverse rulings from the ECtHR, thereby damaging our reputation as a country that respects the international rule of law, and the rule of law in general”. It also pointed to Russian legislation passed in 2015 (more on which below) and emphasised that putting these principles in statute could “inspire other countries to pass defensive laws seeking to immunise themselves from decisions of international courts”. Indeed, there have long been warnings about the “risks of contagion” from the UK’s hostility towards the Convention system.
As noted above, the Bill also has interim measures in its sights. Under Rule 39 of the Rules of Court, the ECtHR may indicate interim measures to any State Party to the Convention. Interim measures are described as “urgent measures which, according to the Court’s well-established practice, apply only where there is an imminent risk of irreparable harm” and are granted “only on an exceptional basis, when applicants would otherwise face a real risk of serious and irreversible harm”. Clause 24 of the new Bill provides that interim measures issued by the Strasbourg Court are to be disregarded by UK courts:
(1) For the purposes of determining the rights and obligations under domestic law of a public authority or any other person, no account is to be taken of any interim measure issued by the European Court of Human Rights.
(2) Subsection (3) applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of a Convention right.
(3) The court may not have regard to any interim measure issued by the European Court of Human Rights.
A press release from the UK’s Ministry of Justice would appear to confirm that this clause is motivated by the recent decision of the ECtHR to grant an urgent interim measure in the case of K.N. v the United Kingdom concerning an asylum seeker’s removal to Rwanda under the UK’s new partnership with that country. (For information about five further requests for interim measures in cases concerning removal of asylum seekers under this scheme which were also considered by the Strasbourg Court, see here.) The UK’s scheme was recently described by the UN High Commissioner for Refugees, Filippo Grandi, as “all wrong”. The MOJ press release states that the Bill will “[c]onfirm that interim measures … such as the one issued last week which prevented the removal flight to Rwanda, are not binding on UK courts”. As others have pointed out, “[t]he change to enforceability of interim measures from the Strasbourg court … could violate the UK’s obligations under the ECHR and is not an evidence-based proposal that has had the benefit of scrutiny or consultation” as well as setting “a dangerous precedent for other countries”.
Indeed, although interim measures are not provided for in the Convention itself, States Parties are under an obligation to comply with them. For example, in Mamatkulov and Askarov v. Turkey, the Grand Chamber clarified that by failing to comply with the interim measures indicated under Rule 39, Turkey had breached its obligations under Article 34 of the Convention. (For further discussion of the relevant case law on the obligation to comply with interim measures, see e.g., here.)
The dangerous nature of these provisions in the UK Bill becomes more apparent when they are considered in the context of wider patterns of non-compliance with ECtHR decisions by other countries. The Government’s approach risks the UK both losing its good record of compliance in recent years and exacerbating some worrying trends in the region.
Since its establishment in 1959, the ECtHR has delivered more than 24,500 judgments, making a vital contribution to the protection of human rights in the region as well as influencing human rights discourse around the world. However, even before the Covid-19 pandemic, the Court faced a backlog of pending applications and challenges regarding the execution of its judgments. Failing to implement judgments in a timely and effective manner undermines the Rule of Law, and poses significant challenges for the credibility and legitimacy of the Convention system, especially when Europe is facing systemic threats to the Rule of Law.
A recent report from the Committee of Ministers, the body responsible for supervising the execution of ECtHR judgments, shows that 1,122 cases were closed in 2021. In addition, the number of cases pending before the Committee of Ministers was 5,533, one of the lowest since 2006/07. However, 1300 of the pending cases were classified as leading cases – cases defined in the Report as “revealing new structural and/or systemic problems” and which require “the adoption of new general measures to prevent similar violations in the future” – and the non-implementation of leading judgments increases the likelihood of burdening the Convention system with repetitive cases. The countries with the highest number of leading cases pending include the Russian Federation (217), Turkey (139), Romania (106), Ukraine (106), and Bulgaria (92). Prolonged non-implementation of judgments also remains a concern with 648 of these 1300 leading cases, having been pending for more than 5 years. Moreover, the report also highlights serious delays in the submission of action plans and reports by member States, and as regards the payment of just satisfaction.
With the Russian Federation’s expulsion from the Council of Europe in March of this year, it has been commented that the government’s likely non-participation in future proceedings or in the implementation of judgments means that any future judgments against Russia will be “largely symbolic, providing a lasting if incomplete record of Russian aggression—at least until a future Russian government reengages with the regional human rights system”. Even before this, however, Russia’s membership of the Council of Europe was “undoubtedly… tumultuous”. In 2015, legislation was passed which empowered the Russian Constitutional Court to declare decisions of international courts, including the Strasbourg Court, as “unenforceable” with the consequence that “no actions/acts whatsoever” aimed at executing the international decision could be taken. In response, the Council of Europe’s Venice Commission underlined that “[a] possible declaration of unenforceability of a judgment of the European Court of Human Rights violates Article 46 of the European Convention on Human Rights, which is an unequivocal legal obligation and includes the obligation for the State to abide by the interpretation and the application of the Convention made by the Court in cases brought against it”. The Venice Commission suggested that “States have to remove possible tensions and contradictions between rulings of the European Court of Human Rights and their national systems, including – if possible – via means of dialogue”. More recently, in 2020, in an opinion on draft amendments to the Russian Constitution, related to the execution of ECtHR judgments in Russia, the Venice Commission stressed that “[i]n ratifying the ECHR and accepting the jurisdiction of the Strasbourg Court, it has committed itself to executing the judgments of the Court. Indeed, there is no choice to execute or not to execute the Strasbourg Court judgment: under Article 46 of the Convention the judgments of the ECtHR are binding”. At the time that the 2015 law was passed in Russia, it was commented that “[t]he shadow of the corrosive British debate is clearly detectable in Moscow”.
We can also look to a recent ruling (ref. no. K 7/21) of the Polish Constitutional Tribunal from March 2022. It is reported that the decision found that “[a]rticle 6 of the ECHR is inconsistent with the Polish constitution to the extent that “it allows the ECtHR or national courts to disregard constitutional provisions, statutes and judgements of the Polish Constitutional Tribunal””. That decision follows an earlier ruling (ref. no. K 6/21) from November 2021, which is reported to have found that “the part of the ECHR that guarantees the right to a fair trial to be incompatible with the Polish constitution”.
What more can the Court, the Committee of Ministers and other European institutions do to support full national implementation of ECHR judgments and to strengthen the supervision process? What tools are available for responding to the non-execution of judgments?
In December 2017, the Committee of Ministers launched infringement proceedings for the first time in respect of Azerbaijan’s ongoing refusal to release opposition politician, Ilgar Mammadov. This procedure, contained in Article 46(4) of the Convention, was introduced by Protocol No. 14 and allows the Committee of Ministers to refer to the Court the question whether a State Party has failed to fulfil its obligation under Article 46(1) to abide by the final judgment of the Court. Under Article 46(5), if the Court finds a violation of Article 46(1), “it shall refer the case to the Committee of Ministers for consideration of the measures to be taken”. The use of the infringement procedure for the first time was significant and showed that the Committee was using all the tools at its disposal. Ultimately, the Grand Chamber judgment of 29 May 2019 found Azerbaijan in violation of Article 46(1) of the Convention. Although all the applicants had been released from detention in the meantime, their convictions still stood and Ilgar Mammadov was only acquitted in April 2020 (see here).
The Committee of Ministers initiated infringement proceedings under Article 46(4) in February this year in relation to Turkey’s failure to release human rights defender, Osman Kavala. It is only the second time the Court has applied the procedure. Then, in April 2022, Osman Kavala was sentenced to life in prison without parole, in a move which has been described as “Turkey’s defiant answer to the Council of Europe”. It remains to be seen how the Grand Chamber will respond in this case and, more broadly, whether such proceedings will be used more often in future. It is worth noting here that, in October 2021, the embassies of a number of countries (including the USA, France, Germany and the Netherlands) called for Turkey to urgently release Osman Kavala, demonstrating the different ways in which pressure can be brought to bear in such cases.
Beyond the Council of Europe institutions, there have been calls for the European Union to pay greater attention to the (non-)implementation of ECtHR judgments in its annual Rule of Law review in order to “help the Commission take stock of the worrying trend of European countries discarding decisions by regional courts – and help strengthen the common legal space which protects our fundamental values”. A recent report from Democracy Reporting International and the European Implementation Network found that “[w]hile there are 602 leading ECtHR judgments pending implementation, the European Commission’s rule of law report only captures a fraction of these cases and does not assess the overall level of non- implementation in each Member State”. The report noted that “the majority of the highest non-implementing countries are also the ones with much broader and systemic rule of law issues”. It emphasised that “[t]he systemic non-implementation of ECtHR judgments is a profound sign that human rights, democracy and the rule of law are under threat” and therefore recommended that EU rule of law mechanisms consider non-implementation to “provide a holistic representation of the level at which Member States uphold these values”.
It is worth noting in an EU context that changes to the UK’s human rights framework could also impact the EU-UK future relationship. If changes to the HRA were to be regarded as “serious and systemic deficiencies”, then the EU could suspend police and judicial co-operation (as discussed by my colleague, Oliver Garner, from page 19 here).
Returning to the UK’s proposals, the latest edition of the report ‘Responding to human rights judgments’, which sets out the UK Government’s position on the implementation of adverse human rights judgments from the ECtHR and domestic courts, reveals that “[b]y population, the UK has the fewest applications of all States” and that applications to the Strasbourg Court “have been on a general downward trend over the last ten years”. The report also notes that the number of judgments and adverse judgments in UK cases “remain low”.
Despite the UK’s strong record, the proposals in the Rights Removal Bill could now place the UK on a collision course with the Convention system. It has been suggested that, politically-speaking, the Bill might actually “make perfect sense from the Government’s perspective” because it will “make it more difficult to bring successful domestic human rights claims” which “in turn, will make successful applications to the Strasbourg Court more likely — at which point adverse judgments will presumably be the ‘fault’ of the ‘foreign judges.’” This would pave the way for the Government to call for withdrawal from the Convention system. That is, if the UK is not pushed out first. Indeed, it has been commented that, if the Bill results in the UK being “persistently in breach of its treaty obligations”, then the Council of Europe would “presumably have no choice but to exclude the UK as it did Russia, or risk undermining the integrity of human rights protections across Europe”. The position is perhaps best summed up in a speech to the ECtHR by Dunja Mijatović, the Council of Europe’s Commissioner for Human Rights, who spoke about the UK’s new Bill and emphasised that “[n]ational judges should be frontline actors in giving effect to Convention rights”. In her speech, Mijatović also noted “the hardening of certain governments against the spirit and the letter of the Convention” and stressed that “[e]veryone should be able to seek and receive justice at home, in line with the subsidiarity principle. Recourse to an international court should be seen for what it is – essentially a failure by a state to provide proper national remedies.”
I am grateful to colleagues at the Bingham Centre for comments on this post. Of course, any errors remain my own. For further information on the UK’s new “Bill of Rights”, see the Bingham Centre’s project page here https://binghamcentre.biicl.org/projects/the-rule-of-law-and-the-so-called-bill-of-rights-bill.