Theresa May is reportedly planning, in the long term, to withdraw the United Kingdom from the European Convention on Human Rights (“ECHR” or “the Convention”) by introducing such a commitment in the next Conservative Party manifesto. After the Supreme Court’s judgment in R(Miller and another) v Secretary of State for Exiting the EU  UKSC 5 (“Miller“), could the government implement this by using executive powers (the foreign relations prerogative to withdraw from treaties), or would the government require prior Parliamentary authorisation whilst the Human Rights Act 1998 (“HRA”) is in force? In this short post, I outline some initial considerations to answer this question.
We learn from Miller (see Legal update, Supreme Court holds that notice under Article 50 to trigger withdrawal from the EU cannot be issued by the Royal prerogative or precluded by constitution of Northern Ireland) that there are inherent limitations to the foreign relations prerogative to withdraw from treaties which flow from both the dualist nature of the UK constitution and the respective roles of the executive and the legislature. First, “ministers are not normally entitled to exercise any power they might otherwise have if it results in a change in UK domestic law” (para. 5 of Miller) and thus (a) “unless primary legislation permits it, the Royal Prerogative does not enable ministers to change statute law” (para. 50 of Miller) and (b) the exercise of a prerogative power must be “consistent with Parliamentary legislation” (para. 47 of Miller). Second, “ministers cannot frustrate the purpose of a statute or a statutory provision…by emptying it of content or preventing its effectual operation” (para. 51 of Miller). Third, the prerogative power does not extend to affecting or changing rights enjoyed on the domestic plane (see paras. 56 and 83 of Miller). Finally, prerogative power does not extend to “suspending” or “displacing” Acts of Parliament (Bill of Rights 1688, cited at para. 44 of Miller).
Whether these limitations would apply to the HRA/ECHR scenario with equal force and effect as they did in Miller in relation to the European Communities Act 1972 (“ECA”) and the TEU and TFEU (“the EU Treaties”) – with the result that the prerogative could similarly not be used to withdraw the UK from the ECHR – is contestable. On an initial appraisal, however, I believe that there is a strong argument that at least some do, meaning that, whilst the HRA is in force, either a specific Act authorising the withdrawal from the ECHR would be required, or the HRA would itself have to be repealed as a condition precedent to the UK withdrawing from the Convention.
There are certainly differences between the ECA/EU Treaties scenario and the HRA/ECHR one which would suggest that not all the reasoning in Miller can apply as strongly, or at all, to the latter scenario. For example, the Convention is, by itself, neither a direct source of domestic law or rights nor supreme in the sense that its contents override other domestic sources of law. Further, an Act of Parliament was not required to enter into the Convention in the first place: it was not until many years later that the HRA was enacted (1998) and came into force (2000). Prior to then, generally speaking (putting to one side indirect interpretive duties), the Convention had no free-standing, direct domestic effects – individuals at most had a right of petition which could either be viewed as operating on the international plane, or as an example of mere “club membership rights” (para. 72 of Miller). It was therefore not necessary to enact the HRA to give effect to the UK’s membership of the ECHR, unlike the ECA in respect to the EU Treaties.
It might initially be assumed that no domestic rights would be lost by virtue of the UK no longer being a member of the Convention whilst the HRA remains in force because specific rights are scheduled to the Act. So, the argument would run, no domestic law rights are affected as a direct result of leaving the ECHR because the Act would continue to apply. Contrary to this common perception, however, the first Schedule to the HRA does not have independent force and does not, by itself, incorporate the rights into domestic law. In fact, two lesser-known provisions of the Act mean that once the Convention has no effect in relation to the UK, the rights in the Schedule have no content or meaning – they are lost.
Section 1(1) of the HRA reads (my emphasis):
“In this Act “the Convention rights” means the rights and fundamental freedoms set out in—
(a)Articles 2 to 12 and 14 of the Convention,
(b)Articles 1 to 3 of the First Protocol, and
(c)[Article 1 of the Thirteenth Protocol],
as read with Articles 16 to 18 of the Convention.”
The key point here is that “the Convention rights” (i.e. the rights to which the Act applies across its provisions and which are scheduled for convenience) are those set out in “the Convention”. What does “the Convention” mean? The answer is found in the interpretation provision, section 21(1), which provides:
“‘the Convention’ means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom (emphasis added).”
Accordingly, the definition of “the Convention rights” is parasitic upon the definition of “the Convention”. And “the Convention”, as defined in the HRA doesn’t mean the ECHR: it means “the ECHR as it has effect in relation to the United Kingdom.” If the UK withdraws from the ECHR, then it no longer has effect in relation to the UK. Hence, if the UK withdraws there is no “Convention” for the purposes of the HRA, and, since “the Convention rights” means the rights set out in “the Convention”, there would no longer be any such rights for the purposes of the HRA. The result would be that the HRA and many of its provisions would be emptied of “Convention rights” content. Put another way, the whole set of domestic law rights identified as “the Convention rights” would be lost as a direct result of leaving from the ECHR. As such, the prerogative could not be used – as Lord Oliver in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry  2 AC 418 at p.500 (cited with approval by the Supreme Court in Miller at para. 56) stated:
“the Royal prerogative…does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament (emphasis added).”
This conclusion ultimately rests on an interpretation of the HRA which might be contested on the basis that the wording “as it [the Convention] has effect for the time being” in section 21(1) demonstrates that, unlike with the ECA (where the wording in section 2(1) ECA “from time to time” referred to the rights, obligations, etc. under the Treaties, rather than the Treaties themselves), Parliament here only assumed, rather than required, membership of the Convention, or only ever intended the rights in question to be contingent upon membership which could be altered at the international level by the Government. I believe this reasoning is open to rebuttal, however. It is entirely plausible that, instead of the wording meaning that Parliament envisaged the possibility of the Convention not applying at all, the wording means that (a) if, through Council of Europe agreements, the content of the international rights change, so too does the content of the enacted “Convention rights” (e.g. if a new Protocol is added) and/or (b) if the UK decides to expand or reduce the definition of “Convention rights” by altering the list of applicable Convention Articles in section 1 then that is envisaged as permissible. In Miller language, whilst Parliament envisages domestic law and rights changing as Convention rights varies, it “does not envisage those rights changing as a result of ministers unilaterally deciding that the United Kingdom should withdraw from [the Convention]” (para. 83). There is a “vital difference between changes in domestic law resulting from variations in the content of [Convention law], and changes in domestic law resulting from the withdrawal by the United Kingdom from the [Convention]” (adaptation of para. 78 of Miller).
Furthermore, the long title to the Act states that the HRA is “[a]n Act to give further effect to rights and freedoms guaranteed under” the ECHR. As is well known, its whole purpose was to “bring rights home”. Thus, it could readily be argued, Parliament similarly “endorsed and gave effect to the United Kingdom’s membership of [the Convention] in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such” (adaptation of para. 77 of Miller). Any mere executive act to frustrate this purpose, or render provisions of the Act nugatory, is impermissible. It is undoubtedly true that the HRA has had a profound impact in domestic law on the rights of individuals and the duties owed to them by public authorities. The HRA, as a constitutional statute and akin to a Bill of Rights, has profoundly altered the relationship between citizens and the state, and is firmly embedded in the devolution arrangements (notably in relation to Northern Ireland in the Good Friday Agreement). Altering the effects, or application of, that Act would, like the ECA, surely trigger “far-reaching change[s] to the UK constitutional arrangements” (para. 81 of Miller). As the eight justices of the Supreme Court in the majority in Miller stated at paragraph 82:
“We cannot accept that a major change to UK constitutional arrangements can be achieved by a minister alone; it must be affected in the only way that the UK constitution recognises, namely by Parliamentary legislation. This conclusion appears to us to follow from the ordinary application of basic concepts of constitutional law.”
The same applies equally to the HRA. As such, the foreign relations prerogative to unmake treaties, which “operates wholly on the international plane” (Miller at para. 86), arguably cannot be exercised in relation to the Convention whilst the HRA is in force in the absence of express statutory authorisation by Parliament.
A short blog of this nature can only possibly aim to have sketched an outline of possible lines of argumentation. The wider consequences of Miller will undoubtedly have to be explored at greater length. One can only hope that the issues directly canvassed in this blog do not ultimately need to be settled by litigation – either because the reported political intention to leave the ECHR changes, or because the Government would see the sense of seeking prior authorisation from the supreme and democratically-elected institution of the UK constitution, Parliament, before swaths of important rights are removed overnight.
I am grateful to Professor Gavin Phillipson and Professor Alison Young for helpful discussions and comments on an earlier draft. The final version was submitted for publication on 20 February 2017.
Jack Williams is a Barrister at Monckton Chambers. He was instructed in the Miller litigation at both Divisional Court and Supreme Court levels by Bindmans LLP on behalf of the Pigney Respondents/Interested Parties (known as “The People’s Challenge”). All views are strictly his own and do not necessarily represent those of either his clients or the rest of Monckton Chambers.