1. Introduction
1. The work on this report is
based on a decision of the Bureau, dated 24 June 2022. The Committee
on Legal Affairs and Human Rights appointed me rapporteur at its
meeting on 11 October 2022. The background to this work is recent
draft legislation in the UK, specifically the Bill of Rights Bill
and the Illegal Migration Bill, and concerns that these bills “contain
provisions that openly flout the UK’s obligations under the European Convention
on Human Rights”.
2. At its meeting on 12 December 2022, the committee held an
exchange of views with the Joint Committee on Human Rights of the
UK Parliament (JCHR). The committee held a further hearing on 22
March 2023 with the participation of Ms Sanchita Hosali, Director
of the British Institute for Human Rights, United Kingdom, and heard
a presentation prepared by Baroness Hale, Former President of the
Supreme Court of the United Kingdom, in her absence.
3. I undertook a useful visit to the UK on 28-29 March 2023 where
I met with representatives from civil society organisations, academics,
parliamentarians, members of the Equality and Human Rights Commission, Government
officials from a number of different Government Departments and
the Minister responsible for human rights. I was also grateful for
information provided separately from the Scottish Human rights Commission,
the Northern Ireland Human Rights Commission and civil society organisations.
4. I shall first set out some background principles in relation
to the different ways that member States give effect to the European
Convention on Human Rights (ETS No. 5), including the principle
of subsidiarity – namely that human rights should, in general, be
secured by domestic mechanisms rather than through reliance on the
European Court of Human Rights. I then consider the way that the
UK currently gives effect to the European Convention on Human Rights
through the Human Rights Act 1998 (HRA); the key elements of the Bill
of Rights Bill (BoRB), as introduced into the House of Commons on
22 June 2022; before considering the implications of the Illegal
Migration Bill (IMB) currently before the UK Parliament from the
perspective of compliance with international human rights standards,
including the European Convention on Human Rights. For the purposes
of this report, I have sought to focus on those proposals with the
most relevance also for other States, for the respect of the rule
of law (including respect for international law) and for the European Convention
on Human Rights system.
2. The obligation to secure respect for
human rights and to provide an effective remedy for a violation of
human rights: the principle of subsidiarity and enforcement of the
rights enshrined in the European Convention on Human Rights in the
member States
5. All Council of Europe member
States are contracting parties to the European Convention on Human Rights
and, as such, are bound, as a matter of international law, to respect
the obligations flowing from it in good faith. This includes the
obligation of each State to respect the human rights set out in
the European Convention on Human Rights of “everyone” within their
jurisdiction (Article 1 of the Convention).
It
also includes the obligation to provide an effective remedy to any
person whose rights and freedoms have been violated by that State
(Article 13 of the Convention).
The object of Article 13 of the Convention
is to ensure that individuals can obtain relief at national level
for violations of their Convention rights without having to set in
motion the international machinery of complaint before the European
Court of Human Rights. Article 13 requires a domestic remedy before
a “competent national authority” affording the possibility of dealing
with the substance of an “arguable complaint” under the Convention
and of granting appropriate relief.
Contracting States
are nevertheless afforded a margin of appreciation in determining
how they comply with their obligations under Article 13.
Where
domestic remedies are ineffective and do not meet the requirements
of Article 13, individuals are forced to refer complaints to the
European Court of Human Rights that should have been addressed within
the national legal system and the number of the European Court of
Human Rights cases against a State will be more significant. Where
the domestic system for enforcement of the rights enshrined in the
European Convention on Human Rights – and in particular the right
to an effective remedy – is effective, there will naturally be fewer
cases brought before the European Court of Human Rights as well
as fewer violations found against that member State. Recourse to
the European Court of Human Rights (Article 34 of the Convention)
should therefore only be necessary as a fallback supervisory jurisdiction.
6. The primary responsibility for implementing and enforcing
the rights and freedoms guaranteed by the Convention resides with
the national authorities – not with the European Court of Human
Rights. This requires action by the State to provide a system of
effective practical enforcement of the rights enshrined in the European
Convention on Human Rights domestically, including adequate avenues
of redress where violations occur. The principle of subsidiarity
is expressed in the new preambular paragraph to the European Convention on
Human Rights, added by Protocol No. 15 (CETS No. 213), which provides:
“Affirming that the High Contracting Parties, in accordance with
the principle of subsidiarity, have the primary responsibility to
secure the rights and freedoms defined in this Convention and the
Protocols thereto, and that in doing so they enjoy a margin of appreciation,
subject to the supervisory jurisdiction of the European Court of
Human Rights established by this Convention”.
7. How States give effect to the European Convention on Human
Rights will depend on their constitutions and their legal systems.
Some member States have monist systems, meaning that they consider
international law obligations to be directly binding in domestic
law (usually providing that the treaty is “self-executing”).
However,
even in monist States, there can often be scope for further reflection
on how best to give effect to the rights protected under the European
Convention on Human Rights and ensure their practical enforcement. Other
member States have dualist systems, in which international legal
obligations need to be transposed or somehow incorporated into domestic
law in order to have full legal effect domestically.
In reality, many States have
a mixed type between monism and dualism. As has been noted in the
explanatory memorandum to the report by Mr George Katrougalos, entitled
“European Convention on Human Rights and national constitutions”, “neither
monism nor dualism provide a sufficient answer for determining the
factors that influence the integration of human rights treaties
into domestic law and States following either approach can be very successful
in implementing the obligations flowing from such treaties”.
It
is important to note that irrespective of the system and the margin
of appreciation, a State cannot adduce its domestic law, including
its constitutional system, as a justification for its failure to
respect its international law obligations under the European Convention
on Human Rights.
3. The
UK Human Rights Act 1998
8. Prior to the Human Rights Act
1998, the UK had not directly incorporated the rights enshrined
in the European Convention on Human Rights into domestic law.
Some
rights were protected under domestic ordinary laws, or under the
common law, and the European Convention on Human Rights had some
effect under domestic law, but it was not directly enforceable.
It was therefore more common for
individuals to need to resort to the protection of the European
Court of Human Rights in order to enforce their rights – which was both
a lengthy and costly process. Moreover, due to the lack of incorporation,
domestic courts only rarely considered the extent of the rights
enshrined in the European Convention on Human Rights and thus only rarely
had regard to the case law of the European Court of Human Rights,
meaning that domestic courts and the European Court of Human Rights
were often approaching cases using different methodology and reasoning.
9. The HRA sought to resolve these concerns and “bring rights
home” through creating a better system of domestic enforcement of
the rights enshrined in the European Convention on Human Rights,
that was closely linked to the methodology of the European Convention
on Human Rights system.
This approach allowed human rights
claims to be brought in domestic courts and embedded human rights
thinking into the policy making and operational actions of public
authorities. In my introductory memorandum I set out the key elements
of the HRA and how they function.
As set
out by Baroness Hale, former President of the Supreme Court of the
United Kingdom, in her statement to the committee, the HRA complies
with the UK’s obligation to have an effective domestic remedy to
secure compliance with the Convention rights, by:
a. Making the Convention rights into
rights in UK law;
b. Making it unlawful for any public authority to act in
a way which is incompatible with the Convention rights;
c. Giving victims a remedy in UK courts and tribunals;
d. Requiring UK courts and tribunals to “take into account”
the judgments and decisions of the European Court of Human Rights
and other Council of Europe bodies;
e. Requiring everyone to “read and give effect” to UK legislation
of all kinds and whenever passed in a way which is compatible with
the Convention rights “so far as it is possible to do so”;
f. If this is not possible, empowering courts and tribunals
to ignore incompatible provisions in secondary (delegated) legislation
but not in Acts of the UK Parliament, which remain valid;
g. Requiring a Government Minister who sponsors a Bill in
parliament to state whether or not he or she believes that it is
compatible with the Convention rights.
10. Data on UK cases at the European Court of Human Rights illustrate
the success of the HRA in ensuring effective enforcement of human
rights domestically, requiring little recourse to the European Court
of Human Rights’ supervisory role in enforcing human rights. Recent
statistics generally show the UK as having the lowest number of
applications brought against it, per capita, of any member State,
as well as the lowest number of admissible applications and the
lowest number of violations.
Civil society organisations representing marginalised
groups have also emphasised the importance of the HRA in enabling
individuals to enforce their rights.
4. Reform
of the UK Human Rights Act and the Bill of Rights Bill
11. For the last two decades there
have been talks about reforming the HRA as I set out in my introductory memorandum.
Following
the 2019 Conservative Party manifesto, the UK Government launched
an Independent Human Rights Act Review (IHRAR) in December 2020,
chaired by Sir Peter Gross. The Panel’s report was published on
14 December 2021 and contained detailed analysis. The report suggested
very minor changes to the HRA, noting that “the vast majority of
submissions” it received “spoke strongly in support of the HRA.”
12. On 22 June 2022, the UK Government introduced the Bill of
Rights Bill into the House of Commons, containing quite significant
changes to human rights protection in the UK, in quite stark difference
to what was recommended in the IHRAR Report.
The Bill has received
little support and has still not progressed within parliament, and
many doubt that it will.
The BoRB would repeal and replace the HRA.
It would retain the same list of rights in the Schedule to the HRA
and many of the provisions are very similar (if not identical) to
the HRA. However, there are significant changes that seem to limit
the protection of human rights in the UK in some respects. As such,
it is a rare example of a Bill of Rights that seems to limit, rather
than enhance, a system of rights protection.
13. Rather surprisingly, the BoRB contains a number of provisions
that do not seem to achieve any meaningful change to the law, but
potentially create a significant amount of confusion or legal uncertainty.
As the JCHR has said, the BoRB “weakens rights protections, it undermines
the universality of rights, it shows disregard for our international
legal obligations; it creates legal uncertainty and hinders effective
enforcement; it will lead to an increased caseload in Strasbourg;
and will damage our international reputation as guardians of human
rights.”
The
BoRB has been viewed as contentious from the perspective of devolution
given the special role accorded to the HRA under the devolution
settlements of Northern Ireland, Scotland and Wales – as well as
the special role of human rights in the Northern Ireland peace process.
14. In my introductory memorandum I set out the key elements of
the BoRB and analysed how they would affect the implementation of
human rights in the UK.
In the
interest of brevity, I have not repeated all that analysis here.
The major elements of note in the Bill of Rights (and difference
to the current HRA) are that:
a. The
bill would delink the interpretation of the rights enshrined in
the European Convention on Human Rights from the case law of the
European Court of Human Rights [clause 3 (former s. 2 HRA)].
b. It would repeal the interpretative obligation [s. 3 HRA]
that requires the courts and public authorities to read legislation
compatibly with the rights enshrined in the European Convention
on Human Rights “so far as it is possible to do so” [See analysis
in paragraph 16 below].
c. It would require “great weight” to be given to certain
considerations, including free speech [clause 4] and public protection
[clause 6], in a way that could upset a proper balancing exercise
involving other qualified rights in the Convention.
d. The bill would reduce the ability of UK courts to enforce
positive obligations on the State to protect human rights [clause
5] [See analysis in paragraphs 18-19 below].
e. The bill seeks to enhance the role of parliament over
that of the Courts in relation to striking the balance in respecting
human rights, with consequent risks that it would lead to results
“inconsistent with the UK’s obligations under the European Convention
on Human Rights” [clause
7], whilst seeming to weaken the ability of parliament to secure
information from the executive in relation to human rights compatibility of
draft legislation [repeal of s. 19 HRA], and establishing a specific
obligation for the Secretary of State to notify parliament of an
adverse judgment of the European Court of Human Rights against the
UK or a unilateral declaration by the UK Government [clause 25].
f. The Bill contains provisions in relation to two specific
types of legal challenges relating to deportation. Clause 8 seeks
to reduce the ability of a “foreign national offender” (non-British
national sentenced to more than 12 months’ imprisonment) to rely
on the right to respect for private and family life (Article 8 of the
Convention) when challenging the compatibility of deportation legislation.
As the JCHR noted, it does this in a way that “would almost extinguish
Article 8 rights entirely” and would be “likely to be incompatible with
the procedural requirements of Article 8”. Clause
20 seeks to limit a court’s power, in deportation with assurances
cases, to allow appeals by a “foreign criminal” against deportation
on grounds that would question the nature of assurances relating
to the right to a fair trial. Whilst the impact of this clause is
likely limited, the “failure to adequately assess the sufficiency
of deportation assurances may amount to a violation of Article 6
and Article 13”.
g. Clause 14 would remove the ability of victims of human
rights breaches arising from an overseas military operation from
being able to enforce their rights under the Convention. However,
this clause could not be brought into force (‘commenced’) unless
the Minister was satisfied that it was compatible with the UK’s
human rights obligations [clause 39] [See analysis in paragraphs
21 and 22 below].
h. Clause 24 would provide that no account should be taken
of any interim measures “for the purposes of determining the rights
and obligations under domestic law” of a public authority or any
other person. [See analysis in paragraph 23 below].
i. A number of provisions seek to limit access to litigation
or to damages for those bringing challenges based on human rights
violations. Clause 15 would introduce a new permission stage before proceedings
could be brought based on the Bill of Rights, requiring the applicant
to have suffered a “significant disadvantage” (unless there was
an “exceptional public interest” in the case being brought) – this
barrier would “undermine the UK’s commitment to uphold human rights”
and could “leave the UK in breach of its international obligations”
under the Convention. Clause 18 creates certain
limitations to an award of damages in respect of a human rights
violation, including having regard to the conduct of the victim,
which would depart from the case law of the European Convention
on Human Rights and seems to run up against the principle of the
universal nature of human rights.
j. Other clauses affect specific rights. For example clause
9 provides that one of the ways in which the right to a fair trial
(Article 6 of the Convention) is secured in the UK includes trial
by jury, and clause 21 would make it more difficult for the courts
to require disclosure of journalistic sources.
15. I would like to highlight specific concerns in relation to
the repeal of the interpretative obligation in s. 3 HRA; the impact
on positive obligations; human rights breaches arising from overseas
military operations; and interim measures.
4.1. The
repeal of section 3 HRA
16. The removal of the interpretative
obligation [s. 3 HRA] that requires the courts and public authorities
to read legislation compatibly with the rights enshrined in the
European Convention on Human Rights, “so far as it is possible to
do so” is worthy of further consideration. This provision is all
the more relevant because similar provisions have subsequently been
introduced in other bills before parliament, including clause 1(5)
of the Illegal Migration Bill, and clauses 42, 43 and 44 of the
Victims and Prisoners Bill, disapplying the interpretative obligation
in s. 3 HRA to that legislation.
17. This provision seems unnecessary as “section 3 does not undermine
parliamentary sovereignty”.
Following repeal, the
existing common law principles of interpretation would still apply
and would help to ensure that ambiguous or unspecific provisions
of legislation were interpreted so as to be compatible with the
rights enshrined in the European Convention on Human Rights.
However, the repeal
of s. 3 HRA would reduce the reach of the interpretative obligation
to provisions that were ambiguous, uncertain, or unduly general.
This would mean that it is likely that more legislation would be
interpreted in a way that is incompatible with the rights enshrined
in the European Convention on Human Rights, possibly requiring more
declarations of incompatibility and applications to the European
Court of Human Rights, and leading to more pressure on parliament
and government to dedicate time to resolving such incompatibilities.
It also introduces some confusion as to the status of pre-existing
interpretations of statute based on s. 3 HRA.
This further adds to the
risks of a period of legal uncertainty following the entry into
force of the Bill of Rights. Whilst the BoRB may not enter into
force, the equivalent provision in the Illegal Migration Bill and
the Victims and Prisoners Bill may well do so, which would disapply
the interpretative obligation in s. 3 HRA to those bills. This will
lead to an increased risk of incompatible interpretations of these
laws and the need for further litigation before both domestic courts
and the European Court of Human Rights.
4.2. Positive
obligations
18. The bill would reduce the ability
of UK courts to enforce positive obligations on the State to protect human
rights. Clause 5 would prohibit the UK courts from applying any
new positive obligations developed by the case law of the European
Court of Human Rights after the enactment of the Bill of Rights.
This provision seems to run clearly counter to the living instrument
doctrine. It would freeze the development of positive obligations,
such that, in time, no new positive obligation could not be directly
enforced in the UK without amendment to UK legislation. Clause 5
would also require the Courts, in applying any existing positive obligations,
to give “great weight” to avoiding specific concerns, including
the need to avoid having an impact on the ability of any public
authority to perform its functions, to avoid an interpretation that
would determine police operational priorities or would require an
unreasonable standard of inquiry or investigation, or would conflict
with issues relating to allocation of resources.
This would also restrain the application
of existing positive obligations in UK domestic law.
19. Clause 5 seems to encourage a more limited application of
positive obligations than that set out in the case law of the European
Court of Human Rights. As the JCHR stresses, “the positive duties
arising from the Convention are expressly or impliedly contained
within the Convention rights and are an important mechanism for
securing rights protection for all persons within the jurisdiction
of the State”, noting their importance in protecting those experiencing
domestic violence, ‘honour-based’ violence or stalking. It then
concludes that clause 5 is “highly likely” to lead to divergences
between interpretations of the Convention rights in the UK and by
the European Court of Human Rights, as well as uncertainty and increased
litigation.
As noted by Baroness
Hale, this is “particularly troubling in relation to the absolute
and non-derogable rights in articles 2, 3 and 4” – not to kill,
torture or enslave – each of which have a series of positive obligations
“to have a system of laws and regulation to protect the right, to
investigate possible breaches and to bring the perpetrators to justice,
and in certain circumstances to protect potential victims from risk”.
The potential impact
on victims of domestic violence, violence against women, or those
at risk of targeted attacks has been raised as a matter of concern.
20. There is a significant risk that this provision would therefore
result in the need for litigation before the European Court of Human
Rights in order for individuals to enforce their rights, and an
increase in adverse judgments against the UK in the European Court
of Human Rights.
4.3. Overseas
military operations
21. Extra-territorial jurisdiction
in a conflict situation outside of the European territorial space
has been viewed as controversial due to practical challenges in
ensuring human rights in an area over which a State has limited
control, and due to the differences between international human
rights law and the lex specialis, international
humanitarian law. However, given the case law of the European Court
of Human Rights on Article 1 relating to “extra-territorial jurisdiction”,
it is clear that excluding liability for the actions of State agents
in military operations overseas in clause 14, without putting in
place an alternative mechanism for access to an effective remedy,
would not be compatible with the UK’s obligation to provide a mechanism
for access to an effective remedy (Article 1, 13 of the Convention
etc) in respect of breaches of a Convention right.
22. As Edward Fitzgerald KC put it “this is flatly contrary to
the requirements of the Convention and international law, and would
create dissonance between [the UK’s] obligations under treaty conventions
and domestic law”.
It
is notable that the Independent Human Rights Act Review
and
the UK Government’s consultation paper
both seem to suggest that the
UK Government may wish to start a debate relating to the extent
of jurisdiction under Article 1 of the Convention in relation to
overseas military operations. However, the correct way to do this,
while respecting the rule of law, is to seek to have such discussions
at the international level rather than seeking to legislate unilaterally
in a way that suggests an intention not to comply with international
law. Including within primary legislation a provision such as clause
14, that, if brought into force, would breach the UK’s international
law obligations under the European Convention on Human Rights, is problematic
in terms of respect for the rule of law and human rights.
4.4. Interim
measures
23. Interim measures are designed
to prevent irreparable damage in a case pending before the European Court
of Human Rights and are issued by the European Court of Human Rights
where it considers that there is an “imminent risk of irreparable
damage” that would either prevent an applicant bringing a claim
or render that claim pointless. Interim measures are not explicitly
mentioned in the European Convention on Human Rights, however, the
European Court of Human Rights has developed case law and practice
under which interim measures, issued under Rule 39 of the Rules
of the Court, are binding as a matter of international law in order
to give full effect to the right of individual application under
Article 34 of the Convention.
Article
34 of the Convention has not itself been incorporated into UK domestic
law, however, the UK Government has procedures in place to comply
with interim measures as a matter of international law.
The UK Government has
a good record of complying with interim measures and seems to accept
that they are binding as a matter of international law, notwithstanding
some political opinions expressed on this topic. Clause 24 BoRB
would provide that no account should be taken of any interim measures
“for the purposes of determining the rights and obligations under
domestic law” of a public authority or any other person. This provision
could be read as merely a strong assertion of dualism, indicating
no real change to the UK’s future conduct in respecting interim measures.
However, there are concerns that it could indicate a different approach,
and optically it has caused confusion as to whether this is an indication
that the UK would no longer comply with interim measures. Former judge
at the UK Supreme Court, Lord Mance, said that “it is extraordinary
to see legislation proposing to forbid any domestic court in future
taking any account of any interim measure issued by the European
Court of Human Rights”.
The clause seems
to achieve little other than creating confusion and suggesting a
potential disregard for the rule of law. Further confusion has been
created by a clause recently inserted into the Illegal Migration
Bill on this topic (see paragraph 47-49 below).
4.5. General
comments on the Bill of Rights Bill
24. There has been significant
criticism and scepticism of the Bill of Rights Bill, with most if
not all civil society organisations in the UK expressing significant
concern and opposition to it, many referring to it as a “rights removal
bill”.
Sir Peter Gross, who chaired the
IHRAR Panel’s work, has said “Typically, a bill of rights reflects fundamental,
enduring values and is an uplifting document, requiring and commanding
wide-ranging consensus. The Bill of Rights Bill is not a bill of
rights. Labelling it as such only serves to encourage cynicism”.
25. Some of the clauses seem likely to have little real impact
but would be highly likely to create legal uncertainty and potential
barriers to enforcing human rights. Other clauses are more obviously
problematic, such as those placing limits on the enforcement of
positive obligations, or on the consideration of human rights violations
relating to overseas military conflicts. Indeed, there have been
doubts expressed as to whether the bill complies with the European
Convention on Human Rights. Lord Pannick QC has said “No serious
person can sensibly suggest that the proposed Bill of Rights complies
with the European Convention on Human Rights”.
26. Lord Mance has noted a number of pertinent concerns with provisions
of this Bill, whilst highlighting the important role to be played
by the rule of law, alongside parliamentary sovereignty, as the
two pillars of British democracy. He notes concerns that the bill
seems to “require or influence the courts to ‘diverge more freely’ from
Strasbourg”, and that at “the international level the Bill would
change this country’s relationship with the European Convention
on Human Rights and with the European Court of Human Rights in particular”.
The provisions of
the BoRB are overall likely to increase the number of adverse European
Court of Human Rights judgments against the UK, and to increase
the extent to which UK legislation is incompatible with human rights (and
delays in resolving such incompatibilities). Given the potentially
confusing nature of some of the provisions (for example the clause
relating to interim measures) and the overall increase in adverse
judgments, it is likely that the main impact of the bill will be
to impede the effective enforcement of human rights in the UK and
to increase political tensions relating to human rights. As Baroness
Hale noted, the bill “will reduce the protection currently given
to the Convention rights in UK law, uncouple UK human rights law
from Strasbourg human rights law, and make it questionable whether
UK law does indeed provide an effective domestic remedy for breach
of the Convention rights”.
27. Much has been written about the bill, I commend in particular
the analysis and conclusions of the JCHR on this topic.
It is welcome that the UK Parliament
has such a detailed analysis of the human rights impacts of legislation
before it. Such an approach is in line with Resolution
1823 (2011) “National parliaments: guarantors of human rights in
Europe”, which, at its paragraph 6.4, “calls on all member states
to provide for adequate parliamentary procedures to systematically
verify the compatibility of draft legislation with Convention standards
and avoid future violations of the Convention”.
28. There is perhaps scope for ensuring that the analysis initially
provided to parliament when a government bill is introduced is both
sufficiently independent from the government and its political priorities,
and is sufficiently frank and transparent. Whilst the Attorney General’s
Office performs a role internal to government in considering the
compatibility of government bills with the rule of law, including
international law, the objectivity of such advice could be perceived
as being affected by the attitude of the Minister (the Attorney General)
responsible for that department at the relevant time. Moreover,
the fact that the Attorney General’s advice is not published does
not assist the legislature in its role in determining whether draft
legislation before it will risk offending the rule of law. The analysis
that is then published by the government in the European Convention
on Human Rights memorandum (or the explanatory notes) thus risks
being seen as only a partial picture that could be politically motivated
– and may be unduly focussed on the rights enshrined in the European
Convention on Human Rights omitting other important rule of law
and human rights considerations. Whilst parliamentary committees,
including the JCHR, try to make up for this lack of objective analysis,
thought might be given to how best to improve the impartiality and
transparency of the analysis initially provided. Other States have
alternative solutions with, for example, a ‘Conseil d’Etat’ providing,
usually published advice, on draft laws. A more independent and
transparent approach can provide greater comfort in demonstrating
that an appropriate level of analysis has been undertaken to ensure
that the rule of law implications of legislation have been fully
thought through. This is arguably all the more important in a country
without a written constitution where a rule of law analysis thus
performs an even more important function.
29. The UK Parliament and Government may wish to consider whether
there could be improved mechanisms for ensuring the independence,
transparency and timeliness of assessments as to the rule of law and
human rights implications of draft legislation. The Houses of Parliament
may additionally wish to consider how best to ensure that such assessments
relating to the rule of law and human rights impacts of bills, including in
the form of existing helpful reports of parliamentary committees,
can be given due and timely consideration when parliament legislates.
5. The
Illegal Migration Bill
30. The Illegal Migration Bill
was introduced into the House of Commons on 7 March 2023. Whilst
migration matters are for the specialist consideration of the Parliamentary
Assembly’s Committee on Migrants, Refugees and Displaced Persons,
the IMB raises a number of fundamental issues relating to compliance
with international law, including the European Convention on Human
Rights, which have links to the themes relating to the reform of
the UK’s human rights legislation.
Moreover,
whereas the BoRB seems to have stalled in its progress through parliament,
the IMB has been progressing at some speed. It is therefore opportune
to consider some aspects of this bill within this work.
31. The IMB contains provisions covering, in particular, removal;
suspensive and non-suspensive claims and appeals; restrictions of
the rights of victims of modern slavery and human trafficking; inadmissible
asylum claims; interim remedies and interim measures; detention;
children; restrictions on entry, leave to remain, and obtaining
citizenship; safe and legal routes. Many of the provisions of the
IMB (including that relating to interim measures) were introduced
as “holding clauses” (namely the actual clauses were introduced
at a later stage in parliamentary consideration of the bill) thus
impeding effective parliamentary scrutiny.
32. The IMB raises concerns of compatibility with the European
Convention on Human Rights, the 1951 Convention on the Status of
Refugees and its 1967 Protocol (the UN Refugee Convention), the
Council of Europe Convention on Action Against Trafficking in Human
Beings (CETS No. 197) and the UN Convention on the Rights of the
Child.
As
the United Nations High Commissioner for Refugees (UNHCR) has said
“The Bill, if enacted, would breach the UK’s obligations under the
Refugee Convention, the 1954 Convention relating to the Status of
Stateless Persons, the 1961 Convention for the Reduction of Statelessness
and international human rights law.”
Moreover,
there have been suggestions that “the Bill is being used as a pretext
for creating a dispute with the European Court of Human Rights over
implementation of any adverse judgments, or declarations of incompatibility
in the domestic courts, which may precipitate proposals to withdraw
from the Convention”.
33. The UK Government has expressed understandable concern at
the number of asylum seekers resorting to dangerous journeys, often
on small precarious boats, across the Channel. Such journeys themselves
pose a risk to the right to life (Article 2) given their perilous
nature in one of the world’s busiest shipping channels and often
in rough seas.
However,
it is important that any steps taken to tackle such concerns themselves respect
human rights, including the rights of children, refugees and those
exploited by human traffickers. As has been noted by the UNHCR,
one way of achieving this could be to ensure fast, fair and effective
decision making within the asylum system.
34. The Assembly Committee on Migrants, Refugees and Displaced
Persons has already expressed concern at the implications of the
Illegal Migration Bill in a statement unanimously adopted on 24
April 2023.
In that statement it said “The provisions
of this bill are a wilful distortion of core UN and European conventions which
the UK itself contributed to designing. Its provisions would jeopardise
the right to an effective remedy, breach the non-refoulement principle,
endanger victims of forced labour and modern slavery, and strip international
protection seekers of their right to seek asylum, with no regard
for the best interest of the child”. It went on to note that “Non-discrimination,
non-penalisation and non-refoulement are the pillars of the Refugee Convention,
requiring effective access to fair and individualised procedures.
In practice, applying such core principles may prove challenging
to State and local authorities in seeking to determine individual
applications fairly. Nevertheless, the repeated legislative changes
in the UK are resulting in removing much-needed protection for refugees
and victims of trafficking, severely disrespecting fundamental human
rights standards. Such measures are not a valid policy response
to the issues at stake.” I fully share these concerns.
35. The Migration Committee statement follows the adoption of
Resolution 2408 (2021) “70th anniversary of the
1951 Refugee Convention: the Council of Europe and the international
protection of refugees”, in which the Assembly emphasised “the urgent
need to strengthen Council of Europe member States’ commitment to upholding
fundamental rights of those who flee persecution for reasons specified
in the 1951 Refugee Convention”.
The same year, the Assembly, in
its
Resolution 2379 (2021) “Role of parliaments in implementing the United Nations
global compacts for migrants and refugees” reiterated its call “to
protect and promote the rights of people on the move, in line with
the international standards of humanitarian protection, human rights,
democracy and the rule of law.”
36. The IMB is the third time since the entry into force of the
HRA that a Government Minister has made a “section 19(1)(b) statement”
that the Minister is “unable” to make a statement that the provisions
of the Bill are compatible with Convention rights.
The
government has explained that this does not mean that the provisions of
the bill are incompatible with Convention rights, but that there
is more than a 50% chance that they may be incompatible.
Importantly
and unusually, the section 19(1)(b) statement is not solely in respect
of one complex or problematic issue. Rather the European Convention
on Human Rights Memoranda produced by the Home Office make it clear
that there are a number of different provisions of the IMB that
have caused the government to be unable to say that the bill complies
with the UK’s obligations under the European Convention on Human
Rights. Substantial questions of compatibility with a number of
different Convention rights have been raised. This indicates a more
substantial appetite within the UK Government for non-compliance
with the rule of law. The bill moved from the House of Commons to
the House of Lords on 27 April 2023, following a number of amendments,
and it is this version of the bill on which I base my considerations
below.
37. The UK Government’s European Convention on Human Rights Memoranda
set out the analysis of the compatibility of the IMB with international
human rights standards.
The
government considers that the rights to life (Article 2), the prohibition
on inhuman or degrading treatment (Article 3), the prohibition of
slavery (Article 4), the right to liberty and security (Article
5), the right to a fair trial (Article 6), the right to respect
for private and family life (Article 8), the right to an effective
remedy (Article 13), the prohibition of discrimination (Article
14) and the right to education (Article 2 of the additional Protocol
to the Convention (ETS No. 9)) are relevant to an analysis of the
bill. It is a welcome practice that the UK Government provides an
analysis to Parliament in respect of government bills. This facilitates
an informed discussion as to the extent to which proposed legislation
does or might not comply with the UK’s international obligations,
and in particular its human rights obligations including those flowing
from the European Convention on Human Rights. This practice might
be encouraged as good domestic practice across Council of Europe
States. However, I reiterate my comments from paragraphs 28 and
29 that further thought might be given, within the UK constitutional
system, as to whether this mechanism could be further improved to
ensure the independence and transparency of such assessments, particularly
in light of the absence of any other “control of constitutionality”
or “rule of law” control within the UK’s constitutional system.
5.1. Removal
38. The bill would create a duty
to make arrangements to remove people who enter the UK without the required
permission and who have not “come directly” from a territory where
their life or liberty was threatened (which is defined as excluding
people who have passed through or stopped in a “safe” country).
They would be removed “as soon as is
reasonably practicable”, either to their home country, the country
from which they arrived, or a country where they will be admitted
– provided it is considered to be a country that is safe in general.
This means that there would
not be any individualised assessment as to whether removal to that country
would be safe for that particular individual, raising concerns that
human rights and refugee law could be breached in individual cases.
On
this note, I recall the Resolution and the Recommendation adopted
by the Parliamentary Assembly in October 2022 on safe countries
for asylum seekers in which the Assembly emphasised that “no absolute
presumption of safety can be made” and encouraged the development
of procedural requirements at the level of the Council of Europe
in order for asylum seekers to have a fair possibility to rebut
the presumption of safety.
39. This duty to remove in the IMB applies irrespective of any
asylum claim, human rights claim, slavery or human trafficking claim.
Separate from the concerns in relation to
serious harm that a person may face on return or to the impact on
victims of slavery or human trafficking, there are well-documented
concerns about the compatibility of this provision with the right
to seek asylum under the Refugee Convention
and human rights law.
5.2. Suspensive
and non-suspensive claims and appeals
40. The bill would restrict the
ability (and the time-limits) for people to appeal against removal
to a safe third country, and would make most appeals non-suspensive
(namely a person can be removed pending their appeal). This could
raise concerns in relation to the compatibility of these provisions
with human rights, including the right to an effective remedy under
Article 13 of the Convention.
41. Where there is a “real, imminent and foreseeable risk” of
“serious and irreversible harm” then a person can make a “serious
harm suspensive claim” within eight days of receiving their removal
notice. This provision is intended to ensure that removals do not
breach the requirements of the Refugee Convention, in particular the
principle of non-refoulement, and the European Convention on Human
Rights (in particular Articles 2 and 3), and the test is intended
to mirror the threshold applied by the European Court of Human Rights
for granting interim measures.
However there are concerns
that this may not be compatible with the requirements of human rights
law, for example in relation to a real risk of serious and irreversible
harm to a person’s health outcomes.
A person
may also make a “factual suspensive claim” against removal, that
a mistake of fact was made in deciding that the person met the removal
conditions.
42. The normal deadline for the Secretary of State to determine
such claims is 4 days and, if successful, the person would then
not be removed.
There is a possibility of appeal to
the Upper Tribunal in respect of a decision as to whether a claim
is suspensive (which requires permission to appeal in a case which
is certified as “clearly unfounded”) – such an appeal process should
in total take less than 30 days.
There are
procedural barriers to raising new arguments, information or evidence
during the various appeal stages, unless there are “compelling reasons”
for such delay in raising new arguments. A person may not be removed
during the time periods for considering and appealing the suspensive
claim application.
There are concerns that the removal of
some layers of appeal (for example judicial review) could be incompatible
with Article 13 of the Convention.
5.3. Restrictions
of the rights of victims of modern slavery and human trafficking
43. The duty to remove applies
irrespective of whether the person is a victim of modern slavery
or human trafficking.
The bill also restricts the assistance
and support that would otherwise be available to such people as
victims of modern slavery or human trafficking. However, the provisions
restricting such assistance and support have a “sunset clause”,
which indicates that they may be intended as temporary measures.
44. Article 4 of the Convention (prohibition of slavery and forced
labour) applies to human trafficking
and requires States to (i) put
in place a legislative and administrative framework to protect against
violations of Article 4; (ii) take operational measures (for example
to protect and support victims, and to prevent those seeking to
exploit victims); and (iii) investigate alleged breaches of the
prohibition on slavery. Similar protections are found in detailed
provisions of the Council of Europe Convention on Action Against
Trafficking in Human Beings. The bill would risk breaching these
obligations to take steps to protect victims and to investigate
crimes. The bill seeks to detain and remove the victims (potentially
to locations where they could be re-trafficked) – thus preventing
meaningful protection of victims and investigative and punitive
action against traffickers. As the Group of Experts on Action against
Trafficking in Human Beings (GRETA) has said “if adopted, the bill
would run contrary to the United Kingdom’s obligations under the
Anti-trafficking Convention, to prevent human trafficking, and to
identify and protect victims of trafficking, without discrimination”.
45. The UK Government argues that it can take this action to remove
victims of human trafficking and modern slavery on the grounds that
they are a “threat to public order, arising from the exceptional circumstances
relating to illegal entry into the UK”.
The fact that an individual
was trafficked into the UK does not make that individual a threat
to public order. Moreover, the reference to “public order” relates
to Article 13(3) of the Council of Europe Convention Against Trafficking
in Human Beings, not to the protection afforded to victims of slavery
and trafficking under Article 4 of the Convention. The UK Government
argues that the provision is nonetheless compatible with Article
4 of the Convention as a person need not be removed if they are
co-operating with an investigation (although there would have to
be “compelling circumstances” requiring them to be present in the
UK for this to bite); a claim may be suspensive if the person would
face a “real risk of serious and irreversible harm”; and the government
would ensure that receiving countries could investigate trafficking
claims and support victims themselves.
In sum, there are doubts
that, taking the provisions together, the new law would adequately
protect victims of modern slavery or human trafficking, in line
with the UK’s obligations under Article 4 of the Convention and
the Council of Europe Convention Against Trafficking in Human Beings.
5.4. Inadmissible
asylum claims
46. The IMB provides that protection
and human rights claims from those subject to removal, having not come
directly from a territory where they were threatened, are inadmissible
– as are claims by nationals of certain Council of Europe States.
As
the UNHCR stated, this would “all but extinguish the right to claim asylum
in the UK” and would effectively deny refugees the protection they
need, whilst potentially leaving them in limbo if they cannot, in
fact, be removed from the UK”.
5.5. Interim
measures and interim remedies
47. Clause 52 prevents a domestic
court from granting any interim remedy that would prevent or delay
a person’s removal from the UK. Clause 53 provides that where the
European Court of Human Rights has indicated interim measures related
to a person’s removal from the UK under the IMB, then a Minister
may decide (having regard to any matter the Minister considers to
be relevant, including the interim measures process and the likely
timing of such a measure) not to remove that person. The duty to
remove a person does not apply pending a decision by the Minister
as to whether or not to make a determination following the indication
of interim measures [clause 53(9)]. Unless the Minister disapplies
the removal obligation, then the executive and courts are expressly
prevented from having regard to the interim measure when processing decisions
relating to that person’s removal from the UK. As set out above,
the European Court of Human Rights has made clear that a failure
to abide by interim measures, such as those preventing a person’s
removal where they could face a real risk of serious harm, is itself
a breach of Articles 1 and 34 of the Convention. Clause 52 therefore
runs a clear risk of placing the UK in breach of its obligations
under the Convention.
48. In a Joint statement issued on 26 April 2023, George Katrougalos
(Greece, UEL), rapporteur for “The European Convention on Human
Rights and national constitutions” and Constantinos Efstathiou (Cyprus, SOC),
rapporteur for “Implementation of judgments of the European Court
of Human Rights”, raised concerns that clause 52, if enacted, would
“place on the statute book a provision that contemplates the UK
Government deliberately breaching its international obligation to
comply with interim measures”.
They stated that “It is of grave
concern that this draft legislation foresees the UK breaching international
law, thus undermining the rule of law. If such a provision becomes
law, this would send a negative message, not only in the UK but
also internationally.” I fully support their statement and share
their concerns.
49. Some commentators have suggested that the criteria to which
a Minister may have regard in coming to a determination as to whether
or not to disapply the duty to remove following the indication of
interim measures by the European Court of Human Rights, seem like
an effort at “negotiation by legislation”, similar to concerns expressed
relating to the overseas military operations clause of the BoRB.
Whilst
States must be able to actively engage with the instances of the
Council of Europe to improve processes, negotiation by legislation does
not appear to be an approach supportive of the rule of law, but
rather heading towards a conflict of laws. Unilaterally legislating
in a manner that would risk placing that State in breach of its
obligations under the European Convention on Human Rights does not
seem like the best method for approaching constructive and genuine
dialogue on such matters. Nor would it comply with a State’s obligations
to implement its treaty obligations in good faith.
5.6. Detention
50. The bill provides for the detention
of people who enter the UK without the required leave, having not “come
directly” from a territory where their life or liberty was threatened
and who would thus be potentially subject to removal under the IMB.
Detention is for potentially lengthy periods of time pending their
removal (or a determination).
Whilst individuals can apply to the Secretary
of State for bail, they cannot challenge any refusal to grant immigration
bail before the courts for the first 28 days of detention – although
they may apply for a writ of
habeas corpus to
challenge their detention.
It is important to note in this context
ongoing concerns in the UK in relation to the appropriateness of
the conditions of some types of detention.
51. These detention powers clearly engage the right to liberty
under Article 5 of the Convention and there are concerns that detention
could thus be determined without sufficiently independent procedural
guarantees. Whilst it can be hoped that a challenge by way of an
application for a writ of habeas corpus will
enable the courts to challenge the lawfulness of detention, there
are questions as to whether this will allow the courts adequately
to assess compliance with Article 5. It does seem unusual that more
modern and adapted methods for challenging immigration bail decisions
have been removed for these cases in preference to the habeas corpus method for challenging
unlawful detention that dates from the twelfth century. This method
would arguably need to be “developed” by the courts having regard
to their obligation under s. 6 HRA to act compatibly with Convention
rights, in order to adequately comply with the UK’s obligations
under Article 5 of the Convention. Moreover, given the anticipated
difficulties in finding a country to which to remove detainees, there
are real risks that many people (including children, pregnant women
and vulnerable adults) will be subject to effectively indefinite
detention. There are thus significant concerns relating to the compatibility
of these provisions with the right to liberty protected in article
5 of the Convention.
52. There are also powers to search and seize electronic material
in relation to a detained person [clauses 14, 60(2) and Schedule
2]. There may be questions as to whether their use validly falls
within one of the justifications under Article 8(2) of the Convention.
Indeed,
these provisions are one of the reasons that the Home Office Minister
has been unable to make a statement that the bill is compatible
with the European Convention on Human Rights (and in particular
the right to respect for private life (Article 8 of the Convention) and
the right to peaceful enjoyment of one’s possessions (Article 1
of the additional Protocol to the Convention).
5.7. Children
53. Various of the provisions specifically
affect children.
This
includes the duty to make arrangements for removal, which is optional
(not a duty) in respect of unaccompanied children (but becomes obligatory
when they turn 18), and is a duty in respect of accompanied children.
Detention affects children and can have profound negative impacts
on their development. Careful thought is needed to consider whether
the rights of the child, as protected under the UN Convention on
the Rights of the Child, can be met by detaining that child for
immigration purposes. The Home Office European Convention on Human
Rights Memorandum notes that a number of human rights could be engaged
by the detention of children (and pregnant women) but concludes that
“family groups will be detained together in appropriate accommodation,
pregnant women and unaccompanied children will be detained in appropriate
accommodation and appropriate provision will be made for educational
and any relevant support needs”.
54. The disapplication of the duty to consult the Independent
Family Returns Panel in relation to children subject to removal
under the bill is purportedly to enable the prompt removal of children
and their families, but obviously has the potential to lessen procedural
safeguards and protections for children. There are also provisions
relating to accommodation and support for unaccompanied children
and provisions concerning age assessments.
55. Of particular note, the Home Office states that the Minister
was “unable to make a statement” of compatibility with the European
Convention on Human Rights in respect of clause 55 (which limits
appeals for age assessments for those subject to removal) due to
the risk that it may not be compatible with Article 6 of the Convention
even though the Government “is satisfied that the provision is capable
of being applied compatibly with Article 6 of the Convention”.
Similar concerns would
appear to arise in respect of the compatibility of this provision
with the right to an effective remedy under Article 13 of the Convention.
56. In UK law, section 55 of the Borders, Citizenship and Immigration
Act 2009 requires that any government functions in relation to immigration,
asylum or nationality must be discharged “having regard to the need
to safeguard and promote the welfare of children who are in the
United Kingdom”. This should help to ensure that the best interest
of the child is a primary consideration in all government decision
making affecting children (as required by Article 3 of the UN Convention
on the Rights of the Child). However, given some of the requirements,
for example to detain or remove children, further detailed consideration
may be necessary to ensure that the welfare of children is indeed
adequately protected when dealing with child migrants.
57. Ensuring respect for the rights of child migrants has been
a concern for the Assembly.
Most
recently, the Assembly, in its
Resolution 2449 (2022) “Protection and alternative care for unaccompanied and
separated migrant and refugee children”, called upon member States
“to respond adequately to the needs of unaccompanied or separated
migrant or refugee children by providing them with assistance that
preserves family unity and keeps them with relatives or other caregivers.
To this end the member States should adopt alternatives care solutions
as interim measures, until the time when children can be reunited
with their family members.”
5.8. Restrictions
on entry, leave to remain, and obtaining citizenship
58. The bill would permanently
bar people who enter the UK without the required leave, having not
“come directly” from a territory where their life or liberty was
threatened from lawful re-entry to the UK, from obtaining leave
to remain or settle in the UK, or from securing citizenship through
naturalisation or registration.
These provisions
are subject to caveats relating to compliance with obligations under
the European Convention on Human Rights.
5.9. Safe
and legal routes
59. The Home Secretary is required
to publish a report on safe and legal routes by which people may
enter the UK and must fix an annual number of people to be admitted
for settlement via safe and legal routes.
In this
light it is important to note that, according to the UNHRC, “the
reality is that for most asylum-seekers there are no safe and legal
routes to enter the UK”, and moreover that “nothing in the Bill
proposes the creation of any such ‘safe and legal’ routes”.
Given
the government’s condemnation of refugees who arrive in the UK through
irregular means, more thought should perhaps be given to providing
such individuals with safe and legal routes. This should include
careful consideration by both the French and UK Governments as to
why people risk their lives through crossing the Channel from France,
and what better mechanisms could be put in place, in both France
and the UK, to protect refugees facing such dilemmas.
5.10. Terminology
60. Refugees rarely have safe and
legal routes for leaving their country of persecution. It is for
this reason that the Refugee Convention foresees that refugees should
not be penalised on account of their “illegal entry or presence”
where they are “coming directly from a territory where their life
of freedom was threatened”, provided they “present themselves without
delay to the authorities and show good cause for their illegal entry or
presence” [Article 31 Refugee Convention]. However, the bill speaks
about “illegal migration” and the European Convention on Human Rights
memorandum talks about “immigration crime”. Whilst it is normal
that States should want to control their borders, it is deeply unhelpful
to conflate migrants and refugees with criminals. Migrants and refugees
may find themselves in an irregular situation with regard to immigration documentation;
that does not make them criminal. To confuse immigration status
with criminality is a dangerous pathway to dehumanising some of
the most vulnerable people in society. Refugees deserve to be treated
with humanity. States and public actors should desist from using
terminology that conflates the plight of refugees with criminality.
6. Conclusions
61. Some of the provisions of the
BoRB may never become law, and others may end up being read by the courts
in a way that is not as harmful to human rights as might otherwise
be the case. But the general tenor of some of these recent reform
proposals is a cause for concern, not least the apparent appetite
to run counter to the UK’s international legal obligations. As Baroness
Hale put it “this is, to say the least, surprising in a country
which has always prided itself on upholding the international legal
order”.
62. It is important to recognise the central importance of the
principles of subsidiarity and margin of appreciation in terms of
how member States choose to give effect to their obligations as
Parties to the European Convention on Human Rights, as well as to
recognise the different constitutional legal systems of the Council
of Europe member States. Nonetheless, all States can benefit greatly
from learning more about each other’s systems for giving effect
to human rights protected under the European Convention on Human Rights.
63. The UK’s system under the HRA for giving effect to the human
rights protected under the European Convention on Human Rights is
clearly an effective one, given that the vast majority of human
rights concerns are being adequately addressed at the domestic level,
with the benefits of greater understanding of domestic laws, practices
and sensitivities that treatment at the domestic level implies.
As a result the UK has one of the lowest number of findings of violations
of the European Convention on Human Rights by the European Court of
Human Rights in relation to population. Elements of the HRA that
are particularly interesting in achieving this result relate to
the relationship between the domestic case law and the case law
of the European Court of Human Rights; the obligation on public
authorities to act compatibly with the rights enshrined in the European Convention
on Human Rights; and the obligation to read legislation, so far
as it is possible to do so, compatibly with the rights enshrined
in the European Convention on Human Rights. Whilst there is no legal
requirement on the UK to retain this method for giving effect to
human rights, it would be regrettable to lose a system that is obviously
working so well as a model, also for other countries, for effective
enforcement of human rights at the national (rather than international)
level. It may be asked what sort of a precedent this sets internationally for
the respect of human rights, and the rule of law – including respect
for international law.
64. In this light I commend the process for parliamentary engagement
with human rights analysis in the UK, both through the information
provided to the parliament by the government, and the human rights
analysis undertaken by the UK Parliament’s human rights Committee.
Such an approach could be a source of inspiration for other countries
in assessing the compliance of domestic legislation with international
human rights standards during its passage through the legislature.
I would, however, suggest that further thought might be given, including
in the UK, to ensuring that the initial assessments provided to
parliament are sufficiently independent and transparent, and that
there are more structured methods for ensuring that full account
is taken, during the legislative deliberative process, of this useful
work of considering the international human rights compatibility
of draft laws. Such an approach could help to improve respect for
the rule of law, which necessarily includes respect for international
law.
65. Certain clauses in the Bill of Rights Bill would, if passed
into law, be of particular concern, and would require a particular
focus, including (i) the compatibility of clause 5 and the respect
for positive obligations; (ii) the compatibility and justification
for clause 14 relating to overseas military operations; and (iii)
the justification and intended impact of clause 24 relating to interim
measures. More generally, however, the BoRB risks creating a period
of legal instability and uncertainty during which the national courts
would have to interpret and apply the new provisions which can risk
impeding the effective enforcement of human rights.
66. In the course of this work I have also been struck at the
seeming lack of understanding of the inherent value of central principles
such as the rule of law, robust democratic institutions and effective
guarantees for the protection of human rights. This seems to be
combined with a significant amount of disinformation in relation
to human rights and the rule of law.
67. More might therefore be done to embed human rights education
including by developing initiatives for education and training on
human rights and the rule of law in order to foster culture which
understands and respects the important role that the rule of law
and human rights play in a healthy democracy. This should include
improved tools for better explaining what the European Convention
on Human Rights and the HRA have achieved so far, including for
the UK, and how these achievements can best be preserved and further developed.
68. In particular, I consider that more might be done by both
member States and the Council of Europe to ensure that adequate
processes are in place to correct misunderstandings or misinformation
relating to the rule of law and the impact of the European Convention
of Human Rights system; and to make use of available information
on the functioning of the European Convention on Human Rights system.
69. In this light, I welcome initiatives such as the work to highlight
the
impact
of the European Convention on Human Rights system, and encourage greater use of such communication materials.
I also encourage further reflection on how best to strengthen communication
work in relation to the role of the European Court of Human Rights
and the implementation of its judgments.
70. In relation to the Illegal Migration Bill, there are clearly
numerous concerns around its compatibility with international law,
including the UN Refugee Convention, the European Convention on
Human Rights, the Statelessness Convention and the Council of Europe
Convention on Action against Trafficking in Human Beings. In this
report, I have not considered the minutiae of the bill – migration
matters are addressed in greater detail by the Committee on Migrants,
Refugees and Displaced Persons, and moreover the details of the
bill are necessarily a domestic matter for the UK authorities. However,
there are obviously significant concerns, expressed not least by
the UNHCR, that this Bill will place the UK in breach of its international
obligations. On that subject, I feel it appropriate to highlight
that the refugee crisis is an international matter, and perhaps
one best solved by international methods for resolving shared challenges.
Unilateral attempts to legislate away one’s internationally binding
obligations are unlikely to result in much progress for international
peace and co-operation, nor the protection of some of the world’s
most vulnerable. In this light, it is important to remember that
international law is part of the rule of law and is something we
must all endeavour to value and to approach in a spirit of good
faith. Whilst this report has focussed on the UK legislation, the
general points I have raised are, I hope, of equal relevance to
all States seeking to consider the best methods for protecting human
rights.