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In 2014, the Conservative Party provided a proposal to change human
rights law in the United Kingdom (UK), in which the enactment of a UK Bill of
Rights and the withdrawal from the European Convention of Human Right (ECHR)
were highlighted.1 There
are multiple definitions of “Bill of Rights”, one of which is a body of law
which encompasses and builds on the UK’s duty under the ECHR as well as
establish that such rights are expressed in British law and safeguard and
expands British freedom.2
However, in the context of the Conservative Party’s proposal, “Bill of Rights” can
be defined as an authority to assure basic legal rights3
with regards to human rights in the UK. The Conservative Party’s proposal has
also provided for what a UK Bill of Rights would contain, that is the
provisions under the Human Rights Act 1998 (HRA). Besides the enactment of a UK
Bill of Rights, the proposal also includes plans to withdraw from the ECHR and
this had led to debate as to whether the UK government is able to use
prerogative powers to withdraw from the ECHR. The scope of the use of
prerogative powers has narrowed, and this essay will focus on the use of prerogative
powers to enter or conclude treaties without approval from Parliament as well
as the fact that prerogative powers cannot be used if such use of powers will
lead to changes in UK domestic law.4
The aim of this essay is to discuss whether the government has legal authority
under the UK constitution to withdraw the United Kingdom from the ECHR using only
prerogative powers of the Crown by looking at the relation of the Human Rights
Act 1998 with the ECHR with reference to Miller and by considering the roles of
devolved nations.

 

While the ECHR is not an EU Treaty, the case of Miller regarding the
withdrawal of the United Kingdom from European Union provides insight into the
use of prerogative powers to withdraw from international treaties. It was held
in Miller that prerogative powers
cannot be used where a “major change to UK constitutional arrangements” is
resulted as provided by the UK constitutional law.5
In coming to a conclusion as to whether the government has legal authority to
withdraw the United Kingdom from the ECHR using only prerogative powers, there
is a need to consider the role of the HRA with relation to the ECHR. To do so,
there is a need to contemplate the different means of reading the Human Rights,
the dependence reading and the bifurcation reading.6
The dependence reading suggests that the provisions of Convention rights under
the HRA is contingent on the interpretation of “the Convention” provided by the
HRA, and thus with the withdrawal of the UK from the ECHR, the rights provided
under the HRA would be removed leading to a removal of statutory rights.7
The basis of the dependence reading is the literal reading of s21(1) of the
Human Rights Act 1998 on the definition of “the Convention”,8
which implies that there will be no Convention rights as provided by the HRA if
the United Kingdom withdraws from the ECHR since the ECHR would have no
relation to the United Kingdom and the rights conferred in the HRA under the
ECHR would cease to have effect. As a result of the dependence reading, an
assumption that Parliament had included Schedule 1, which provides the set of
articles in the ECHR that is referred to in s1(3) of the HRA, to have no legal
effect has to be made, such would not be consistent with the intent of
Parliament.9 Under
the dependence argument, withdrawal from the ECHR would lead to changes in UK
domestic law and frustrate the HRA, and in applying the judgement in Miller, the UK government cannot use
prerogative powers to withdraw from the ECHR.

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Another means of interpreting the HRA is the bifurcation reading, in
which the interpretation of Convention rights is distinct from that of “the
Convention” and as such, the withdrawal of the UK from the ECHR would still
allow for the performance and result of the HRA’s significant rights-protecting
provisions to be preserved. Under the bifurcation argument, the definition of
“Convention” is provided by section 21 of the HRA and the definition of
“Convention rights” is provided by section 1 with reference to Schedule 1,10
providing a “purpose” for the existence of Schedule 1 in the HRA ,as opposed to
Schedule 1 having no legal effect under the dependence reading, to render the
rights in the HRA as domestic law rights. This is supported by the fact that
the definition of “Convention” in section 21 comes separate from that of “Convention
rights” in section1.11
 However, there are certain provisions of
the HRA that could be partly or wholly frustrated under the bifurcation
reading, which will be touched on in the subsequent paragraphs. Taking section 10(1)(b)
as an example, through the bifurcation reading, it is clear that s10(1)(b) is making
reference to “the Convention” and not “Convention rights” since it is providing
a quicker means of revising incompatible legislation as acknowledgement of the
judgement made by the Strasbourg courts.12
Such means of reading the HRA implies that the list of rights under the HRA and
those that bind the UK are different, in that while the United Kingdom is held
responsible for a breach of rights under the ECHR, such cannot be relied on
before the UK courts under the HRA and can only be relied on before the
Strasbourg courts.13

 

The Human Rights Act provides support for both the dependence and the
bifurcation readings and under the two readings, the purpose of the HRA is
vastly different. Under the dependence reading, the purpose of the HRA is the
provision of the corresponding protections and rights in national law to
citizens as they would under Strasbourg.14
In contrast, the purpose of the HRA is the provision of human rights protection
based on the rights conferred under the HRA with interpretation determined by
domestic courts under the bifurcation reading. 15
The difference in purposes is due to the “mirror principle” under the
dependence reading that was introduced by Lord Bingham in R v Special Adjudicator (2004) in which Lord Bingham states that “the duty of national courts is to keep pace with the
Strasbourg jurisprudence as it evolves over time: no more, but certainly no
less”.16 The
“mirror principle” is in relation to section 2(1)(a) of the Human Rights Act
regarding the interpretation of Convention rights and the obligation of
national courts to “take into account” the decisions made in Strasbourg.17 Lord
Bingham reasons that the European Court of Human Rights is the most
authoritative body on the interpretation on human rights and thus national
courts, who are public authorities, should apply the standards developed by the
European Court of Human Rights.18 In
deciding which reading of the HRA would be the most appropriate, UK case laws are
as divided on the means of reading the HRA, with cases like McKerr in which Lord Nicholls provided
that the rights conferred by the ECHR and the rights conferred by the HRA with
reference to the ECHR are distinct,19 in
support of the bifurcation reading and case like Ullah in support of the dependence reading.

 

The interpretation of section 21 of the HRA
holds significance in the debate between a dependence and a bifurcation
reading. While it has been mentioned that section 21 provides for the
definition of “the Convention” that can be seen to be separate from the meaning
of “Convention rights” provided in section 1, courts have understood section 21
to refer to Convention rights that were in effect when the contentious action
took place.20
However, it is worth noting that the case laws supporting such interpretation
of section 21 is in relation to territorial implementation and the extent of
the ECHR and without such interpretation, relationship between the United
Kingdom and its overseas territories could be strained.21
Such interpretation of section 21 is context-based and is of narrow scope.

Furthermore, in these case laws, it is implied that the any changes to the ECHR
that concerns the UK is involuntarily incorporated into national law which is
inconsistent with the provisions of section 14 and 15 of the HRA which require
an Order in Council for such changes to take effect in UK law.22 23

 

It has been previously mentioned that the
bifurcation reading would still allow for the performance and result of the HRA’s
significant rights-protecting provisions to be preserved, it has also been
mentioned that some provisions of the HRA would be partly or wholly frustrated
under such reading if the UK were to withdraw from the ECHR. One of such
provisions is section 10(1)(b) which is applied when legislative provisions
violates UK’s responsibility under the ECHR as the effects are dependent on the
meaning of “the Convention”. Withdrawal from the ECHR would render a reduction
in the applicability of s10(1)(b) but not a full removal of its applicability
in the United Kingdom. The UK would still have obligations under the ECHR for
acts that were committed before the withdrawal from the ECHR became effective
and following the withdrawal, UK ministers can recognise that an unimplemented
decision was inconsistent with the Strasbourg court’s decision against the UK,
when the UK was still party to the ECHR.24
Other provisions would be section 14, 16, 17 and 18 which may be fully
frustrated by an ECHR withdrawal. Although these provisions are frustrated,
there provisions only provide for a procedural mechanism and does not affect
the main provisions of the Human Rights Act in protecting “Convention rights”
under a bifurcation reading.25

 

While it is important to discuss about the UK’s relation to the
withdrawal from the ECHR, it is as significant to discuss the position of the
devolved nations, since the HRA applies to devolved nations as well. The HRA is
embedded in the devolution settlements as seen in section 29(2) of the Scotland
Act 1998.26  While the HRA is not a devolved or transferred
matter, human rights is and as such the Sewel Convention may apply.

Nonetheless, it is important to note that the Sewel Convention is a
constitutional convention and is not legally binding upon the UK courts. In the
Belfast Agreement 1998, the ECHR was fully incorporated into Northern Ireland law
and withdrawal from the ECHR would lead to changes in Northern Ireland law,
greatly affecting the legal system in Northern Ireland.27
Under the Scotland Act 1998, the ECHR was given legal effect in Scotland as
seen in section 7(2)(a).28

 

In relation to the Miller judgement
regarding the withdrawal of the United Kingdom from the European Union, it was
held that prerogative powers cannot be used when the result would lead to major
constitutional changes.29
As such, there is a need to consider whether the withdrawal from the ECHR would
lead to major changes to the UK constitutional arrangement. Even so, there is
an ambiguity as to whether Miller is referring
to the ruling out of the use of prerogative powers if such use could lead to a
change in even one of the provisions of domestic law or the prevention of the
use of prerogative powers when such use would frustrate legislation by “emptying
legislation or statutory provisions of content” or stop the performance of
statutory provisions.30
If the former is the means of interpreting Miller,
either reading of the Human Rights Act would not allow prerogative powers
to be used. Even with a narrow interpretation of the provisions under the
bifurcation reading, this would not be consistent with the intention of
Parliament. However, if the latter is the means of an interpretation of Miller, the bifurcation reading would
allow the constitutional status of the HRA to be protected.31
With regards to the devolved nations, Miller
has observed that the Sewel Convention does not have statutory obligation and
does not result in any legal consequence if the Sewel Convention is not
complied upon.32 It
is also observed that if the Westminster Parliament wishes to legislate
regarding devolved nations without the permission of the devolved nations, the
Act of Parliament cannot be held to be invalid by the UK courts as a result of parliamentary
sovereignty.33

 

In conclusion, in discussing whether the UK government has legal
authority to withdraw from the European Convention of Human Rights using only
prerogative powers, there is a need to consider which reading, dependence or
bifurcation, of the Human Rights Act 1998 should be used as the readings are
vastly different. There is also a need to consider the interpretation of Miller with regards to “major changes to
the UK constitutional arrangements”,34
since under the second interpretation of Miller,
the bifurcation reading would allow for the use of prerogative powers to
withdraw from the European Convention of Human Rights. There is great ambiguity
in such use of prerogative powers as case laws are as divided on the
interpretation and reading of the Human Rights Act 1998, and, similar to Miller, would be up to the Supreme Court
to provide their judgement on whether the use of prerogative powers can be used
to withdraw from the European Convention of Human Rights.  

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