The Act has proved controversial; and while it is still backed by the Labour Party and the Liberal Democrats, the Conservative Party has long been committed to replacing it with alternative legislation (and potentially renegotiating the United Kingdom’s position on the Convention).
In October 2014, the Conservatives spelt out their plans in a paper entitled Protecting Human Rights in the UK. Labour’s former Shadow Justice Secretary, Sadiq Khan, has also talked about asserting “the role of British courts vis-à-vis Strasbourg.”
The UK Government’s approach to human rights
Disquiet about both the Human Rights Act, and latterly the jurisdiction of the European Court of Human Rights itself, has a number of causes. The principal concerns of critics focus on two discrete issues: the impact of human rights laws on parliamentary sovereignty; coupled with their belief that these laws have been abused by various litigants.
The accuracy of these fears is often contested, but they include: foreign prisoners who cannot be deported (although it is worth noting that this is sometimes due to EU law obligations, rather than the Convention, and the two are frequently conflated by the media); the contentious and seemingly intractable issue of prisoner voting; and various tensions when suspected terrorists rely on Convention rights.
Council of Europe figures show that of the large number of applications to the Court, only a tiny proportion result in a judgment against the UK.
The Government sought to deal with some of these issues in domestic law in the 2010 Parliament (e.g. the Immigration Act 2014, which introduced new rules relating to foreign prisoners). It took a twin-track approach to wider concerns, establishing a Commission on a Bill of Rights, which reported inconclusively in 2012.
During the UK’s Presidency of the Council of Europe, there were moves to reform the Convention system itself, culminating in the Brighton Declaration, which included an agreement to amend the Convention to include the principles of ‘subsidiarity’ and the ‘margin of appreciation’ (which would support national authorities reaching conclusions based on their own particular circumstances).
Some critics of the Convention system remain unsatisfied, arguing that underlying issues relating to parliamentary sovereignty remain unresolved. Under Article 46(1) of the Convention, the UK is obliged to implement judgments of the Court in any case to which it is a party.
The Question of Prisoner Voting
One area where the operation of Article 46 has proved difficult is in relation to the question of prisoner voting. The United Kingdom is under an international law obligation, under Article 46, to implement the judgment of the Court in the case of Hirst v United Kingdom (No.2), which was delivered in 2005.
The failure of the Government to repeal what the Court described as a “blanket ban” on prisoner voting has resulted in more than 2,000 claims from disenfranchised prisoners. The Court has found against the Government in a series of further cases (although it has declined to award any prisoners financial compensation).
The issue has also been considered by the domestic courts, most notably by the Supreme Court in 2013.
David Cameron and Sadiq Khan have spoken against giving prisoners the right to vote. In February 2011, in a Backbench Business Committee debate, many Members expressed their strong opposition to the Hirst judgment.
The resolution, agreed by a majority of 234 votes to 22, stated “that legislative decisions of this nature should be a matter for democratically elected lawmakers”.
A draft Bill was considered by a Joint Committee in the 2010-15 Parliament. The Committee reported in December 2013. It concluded that a refusal to implement the Court’s judgment would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow.
Accordingly, it recommended a Bill should be introduced to allow the vote to prisoners serving sentences of 12 months or less; and moreover that prisoners should be entitled to apply, 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.
No legislation was forthcoming: in a paper in December 2014, the Government said that it was “considering the report but will not be able to legislate for prisoner voting in this Parliament.”
The Committee of Ministers has decided to defer further discussion of the issue until September 2015; and thus the new Government will find the question of prisoner voting remains to be resolved.
- Conservatives: scrap the Human Rights Bill and introduce a British Bill of Rights
- Greens: retain and protect the Human Rights Act
- Labour: protect the Human Rights Act and reform the ECHR
- Liberal democrats: retain and protect the Human Rights Act
- SNP: oppose scrapping the Human Rights Act or withdrawal from the ECHR
- UKIP: repeal the Human Rights Act, leave the ECHR and introduce a UK Bill of Rights