Public opinion and constitutional rights protection in the United Kingdom – a retreat from Strasbourg?

Dr. Kundai Sithole, Research Associate, POLIS

With the United Kingdom Independence Party’s successful inroads into the British political establishment at the European elections earlier this year, the question of ‘Europe’ remains high on the political agenda. The Conservative Party agenda, that is. UK membership of the European Union has for decades been a bane for many Conservative elites and voters. The European Court of Human Rights’ recent judicial reviews – or ‘mission creep’ to some – have amplified calls for UK withdrawal from the European Convention on Human Rights (Convention, ECHR). In light of the forthcoming general election, Conservative leader and current Prime Minister David Cameron has organised his troops. The heavy artillery in the Conservative Party’s pro-Strasbourg brigade – Dominic Grieve, Kenneth Clark and William Hague – were recently shuffled into the background. In the foreground now remain Theresa May and Chris Grayling, whose thinly disguised contempt for Strasbourg is likely to result in proposals to re-think the Convention regime as a source of constitutional rights protection in the UK. Alongside Council of Europe membership and the European Court of Human Rights’ qualified judicial review is the matter of the Human Rights Act 1998. Enacted in 1998 under New Labour, this Act of Parliament incorporated the ECHR into British law, and the enshrined European guarantees became justiciable in British courts. Whilst expediting domestic incorporation of the Convention guarantees into British laws, enacting the Human Rights Act was – at the time – considered less politically controversial and less complicated that to elaborate Britain’s own domestic ‘Bill of Rights’.

Public opinion on Strasbourg and constitutional rights protection in the United Kingdom

The results of a recent project on public perception of constitutional authority conducted here at POLIS Cambridge revealed some interesting findings as to public attitudes to UK membership of the European Convention.[1] Forty-four percent compared to 39% preferred British withdrawal from the ECHR. Should the UK leave the Convention, only 20% considered existing laws to be sufficient in protecting individual rights. Sixty-three percent thought it necessary for the UK to ‘pass legislation creating a British Bill of Rights’. Those who supported British withdrawal from the ECHR were then asked to consider whether enjoyment of any new human rights guarantees should be qualified by such factors as an individual’s citizenship status, prison record, or knowledge of British democracy. Only 37% thought new legislation should protect the rights of ‘citizens of other countries currently living Britain’. Opinion among those who supported withdrawal from the ECHR was also less favourable to the enjoyment of rights under any new legislation by those with a prison record. Only 29% approved legal protection for those ‘people who are no longer in prison but have been jailed for serious crimes in the past’. Support for the rights of ‘prisoners serving sentences for serious crimes’ was registered at only 18%. Twenty-seven percent were in favour of legal protection for ‘prisoners serving sentences of LESS than 12 months’. Reflective of the current debate on British values, only 31% considered that ‘people who fail a basic test of literacy and knowledge about British democracy’ should have their rights protected under a ‘Bill of Rights’. Significantly, 28% were not in favour of those with a record of incarceration, those without British citizenship, nor those without basic literacy or knowledge of British democracy enjoying rights under any new British legislation.

A breakdown of these results by party affiliation as evidenced by the voting pattern at the 2010 General revealed the following trends shown in Table 1 below.

Table 1 Individual rights and political affiliation

 

Voting pattern at the 2010 General Election

 

Conservative

 

(%)

Labour

 

(%)

Liberal Democrat

(%)

United Kingdom membership of the European Convention on Human Rights
Britain should withdraw 68 33 30
Britain should retain membership 21 52 54
Don’t know 11 15         16
Totals 100.0 100.0 100.0
Enactment of a ‘British Bill of Rights’ should Britain withdraw from the European Convention on Human Rights
No, existing laws are enough 26 16 15
Yes, legislation should be passed to enact a ‘British Bill of Rights’ 63 69 72
Don’t know 11 15 13
Totals 100.0 100.0 100.0
Which, if any, of these groups should be protected under a ‘British Bill of Rights’?
Citizens of other countries currently living in Britain 28 35 43
Foreign tourists or travellers currently visiting Britain 29 33 42
People who fail a basic test of literacy or knowledge about British democracy 22 31 35
People who are no longer in prison but have been jailed for serious crimes in the past 21 29 34
Prisoners serving sentences of LESS than 12 months 18 28 32
Prisoners serving sentences for serious crimes 9 18 24
None of the above 42 27 19
Don’t know 16 21 27
       

 

A third of those who voted Liberal Democrat and Labour in 2010 supported British withdrawal from the ECHR. Just over half of Liberal Democrat and Labour voters favoured continued membership of the ECHR as a source of constitutional rights protection in the UK. Such Labour and Liberal Democrat support for continued ECHR membership contrasts starkly with the Conservative Party voters’ overwhelming preference for British withdrawal – 68%. Only 21% of those who voted Conservative preferred the UK to retain its ECHR membership. Similarly, Labour and Liberal Democrat supporters displayed the greatest support for new legislation to create a ‘British Bill of Rights’ should the UK decide to withdraw from the ECHR – 69% and 72% respectively. Whilst equally supportive, only 63% of Conservative voters supported enactment of such legislation. That those who supported the Conservative Party tended to be more authoritarian than liberal was evidenced in public opinion as to who should enjoy the rights and freedoms that might be included under a ‘British Bill of Rights’ if the UK were to withdraw from the ECHR. Conservative voters displayed the greatest support for qualifying the enjoyment of rights under any new legislation based on an individual’s citizenship status, literacy levels and knowledge about British democracy, and record of incarceration. Public attitudes towards individual rights as illustrated by voter preference in 2010 placed Labour on the ideological middle ground. Liberal Democrat voters’ support for unqualified enjoyment of such rights was generally four to nine percentage points higher than Labour, and 13 to 23 percentage points higher than the Conservatives.

Conclusions

Two major issues have come to dominate elite and public perception as to the protection of individual rights in 21st century Britain – the Human Rights Act 1998 and the fight against international terrorism. Terrorist activity in London, Mumbai, New York and elsewhere alerted elite and popular opinion to new international security concerns, at the same time as new legislative measures brought into relief the need to balance human rights considerations with the need to secure the realm against internal and external threats. This need for security against terror was not new to the UK, for England and Northern Ireland had suffered similar attacks by dissident Irish republican groups since the late 1960s leading to the suspension of autonomous rule in Northern Ireland between 1972 and 2007. Dissident activity on British soil had resulted in fairly comprehensive counter terrorism measures. Although some cases related to the Troubles had been presented before the Convention mechanisms in Strasbourg,[2] questions as to the rights of terrorist suspects had largely remained a national matter with little external influence from either the Council of Europe or the European Court of Human Rights. However, the heightened international security threat that followed 9/11 resulted in claims by the UK government for additional counter-terrorism measures, and greater authority in such matters as the detention or expulsion of those involved or suspected to be involved in terrorist activities in the UK and/or abroad. Although residual liberty remains protected under the common law, it is against the guarantees of the Human Rights Act 1998 – and, if necessary, the ECHR in Strasbourg – that the impact of counter-terrorism measures on individual liberty is to be adjudged. That said, attempts to balance national security considerations with the need to uphold positive ECHR rights has led to the perception among some that European legislation and qualified judicial review is an impediment to the UK government’s ability to secure the realm. Labour’s centre-left economic programme might well explain why its voters support withdrawal from the ECHR as a source of constitutional rights protection in the UK. However, Conservative preoccupation with the sovereignty of the Westminster Parliament, and with foreign judges lacking democratic accountability in the UK largely prevails in the British psyche. Overall, the public in Britain appear to consider existing European guarantees as providing legislative cloaks behind which foreign criminals may evade extradition from the UK. Whilst public opinion might be more or less divided in its support for UK withdrawal from the ECHR and its European Court of Human Rights, the desire to end membership does not necessarily mean the population in Britain object to the need for constitutional measures aimed at protecting individual rights. It seems only domestic guarantees will do.

[1] YouGov-Cambridge poll of 17-18 August 2014, commissioned especially for this POLIS Cambridge study into popular perception of constitutional authority in the United Kingdom. The author would like to thank the Le Roux Trust for its support.

[2] See for example, Ireland v United Kingdom 18 January 1978, Series A no. 25.

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