Compounding the confusion

I have spent much of my career trying to persuade people that the European Convention on Human Rights has nothing to do with the EU. There are two European courts, I explain patiently: one in Strasbourg deciding human rights cases and one in Luxembourg dealing with EU law.

Gazette readers will know that it is a bit more complicated than that. But if you can keep human rights law and EU law apart in your mind, I tell people, there is a chance you will be able to make sense of what is going on. Now, though, I am not so sure. Human rights reform has been inextricably intertwined with renegotiating the UK’s membership of the EU. And it is all the government’s fault.

First, a brief recap. Although the Conservatives pledged as long ago as 2010 to ‘replace the Human Rights Act with a UK Bill of Rights’, the promised consultation paper has not yet appeared. We have known for some months that the government was not planning to withdraw from the human rights convention, which is an international treaty. But it wants to revisit the act of parliament that has made the convention enforceable in UK courts for more than 15 years.

One change under consideration is to amend section 2 of the Human Rights Act, which says that UK courts ‘must take into account’ decisions by the Strasbourg judges. The word ‘must’ could become ‘may’.

The act already requires courts to have ‘particular regard’ for freedom of expression. But Michael Gove told the Lords EU justice sub-committee  this month that it might be appropriate for parliament to ‘firm up and make clearer’ the importance of free speech.

Another change under consideration might exempt British troops from complying with the convention when engaged in armed conflict. For this to prove effective, however, the UK would need to persuade the human rights court that ‘derogation’ from the convention was strictly required by ‘war or other public emergency threatening the life of the nation’.

The justice secretary could not say when his consultation paper would be published. It was for the prime minister to decide, he told peers. But it clearly falls far short of the bespoke British bill of rights that Jonathan Fisher QC sketched out in his recent paper for the thinktank Politeia. Last December, though, Gove told the Lords constitution committee that David Cameron had asked him ‘to think hard about whether we should use the British bill of rights in order to create a constitutional longstop similar to the German constitutional court and, if so, whether the [UK] Supreme Court should be that body’.

This is where we move from human rights law to EU law. Cameron apparently believes that a constitutional court in the UK would be able to restrict the power of the EU, perhaps by overruling decisions by its court of justice – although there are no cases in which the German constitutional court has actually done that.

Setting up a constitutional court in the UK from scratch is clearly a non-starter. Lord Neuberger, president of the Supreme Court, told The Times it was ‘just a recipe for complication, for cost and for unnecessary duplication’. Dismissing the idea as ‘half-baked’, Jeff King, a senior lecturer at UCL, pointed out that we have no reliable definition of ‘constitutional’ in the UK.

So if any court is going to take on the EU, it must be our existing Supreme Court. In the HS2 judgment in 2014, the court suggested in rather convoluted language that some ‘fundamental principles’ of law might not have been overridden by the European Communities Act 1972, which requires the courts to disapply domestic statutes if they cannot be interpreted consistently with EU law.

But judicial activism cannot be relied on by ministers. So Cameron told MPs he wanted ‘to put it beyond doubt that this House of Commons is sovereign’. Presumably, he meant parliament rather than just the Commons.

This is rather curious. The only way the government can put this beyond doubt is to ask parliament to pass legislation. That legislation would presumably proclaim that acts of parliament are sovereign. But if parliament is not already sovereign, saying so will not change anything. If parliament is already sovereign, what is to be achieved by declaring it?

Maybe the legislation would say that parliament or the courts can ignore decisions by the EU and rulings from its court of justice. But if that were to happen, the UK would be in breach of the EU treaties. And, as Dominic Grieve has explained with impeccable logic, the EU court would then override the legislation.

So this is a problem without a solution. And the government’s human rights reforms are a solution without a problem. Confusing the two is not going to solve anything.