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Abstract
One of the key challenges in the domestic implementation of international human rights norms and standards is to adapt and translate them in such a way that they become locally accepted while retaining their transformative potential. Contrary to the common assumption that such translation is necessary especially in the Global South, this article seeks to demonstrate the usefulness of applying the lens of norm translation also to Western liberal democracies through a case study of the United Kingdom. It examines the creation of the highly controversial UK Human Rights Act 1998 (HRA), which gave domestic effect to the European Convention on Human Rights (ECHR) in British law, in order to illuminate the reasons for the HRA’s persistent contestation. Based on the reconstruction of the postwar history of British bill of rights campaigns, the article argues that the continuing criticisms of the HRA and its lack of public support are the results of a failed translation process of the ECHR into the British context. The increasing mismatch in the development of the HRA between the far-reaching structural adaptation of European Convention rights to the peculiarities of the British constitution and the absence of their adequate rhetorical translation created a perceived gap in the HRA’s legitimacy and left the Act in a precarious constitutional position.
Correction Statement
This article has been republished with minor changes. These changes do not impact the academic content of the article.
Notes
Acknowledgments
For helpful comments on earlier versions of this article, I would like to thank Kelly Kollman, Matthew Waites, Elisabeth Badenhoop, Nigel Fabb, Petra Dobner, Michael Kolkmann, Richard Brunner, John McKernan, Yingru Li, Colin Ian Young, Christoph Haar, the two anonymous reviewers, as well as the journal editor, Shareen Hertel. I am also grateful for the feedback I received at presentations of early drafts to the research seminar of the Politics Department, Martin Luther University Halle-Wittenberg, in January 2019, and to the research seminar of the Sociology Subject Group and the Glasgow Human Rights Network, University of Glasgow, in March 2019.
Disclosure statement
No potential conflict of interest was reported by the author.
Funding information
Research for this article was funded by a PhD scholarship and a research and travel support grant from the College of Social Sciences, by a research support grant from the Glasgow Human Rights Network, and by a visiting scholarship from the Adam Smith Business School, all at the University of Glasgow, UK.
Notes
1 For an excellent summary of the campaigns against the HRA, see Cowell (Citation2018).
2 The interview with Francesca Klug from May 11, 2017, was one of twenty-four expert interviews that were conducted as part of a comprehensive study of human rights institutionalization in the United Kingdom since Labour’s rights reforms from 1998.
3 Israel was the other exception.
4 The outcome of the Brexit referendum in 2016 has led to an unprecedented constitutional crisis in Britain, and there is some indication that we are witnessing a redefinition of parliamentary sovereignty and a gradual shift in the constitutional balance of power from the executive toward the legislature and the judiciary in the course of the Brexit negotiations. However, it is difficult to clearly determine to what extent that shift has been the result of increasing pressure by Parliament and the judiciary and/or of the tactical mistakes by the Conservative governments since 2015: for example, the decision by the then Prime Minister David Cameron to hold a referendum on Brexit in 2016; the decision to call a (formally unnecessary) snap election by then Prime Minister Theresa May in 2017; and current Prime Minister Boris Johnson’s decision to prorogue Parliament for five weeks, which was found to be unlawful by the UK Supreme Court in a unanimous judgment delivered on September 24, 2019.
5 The Sex Discrimination Act of 1975, the Race Relations Act of 1976, and the Disability Discrimination Act of 1995 were notable exceptions, as they created a free-standing right to protection from specific forms of discrimination and to equal treatment.
6 East African Asians v. UK [1973] ECHR 2, 208. (Applications Nos. 4403/70-4409/70, 4412/70, 4413/70, 4415/70-4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4478/70, 4486/70, 4501/70 and 4527/70-4530/70).
7 See, for instance, the Bill of Rights Bills by Alan Beith from 1975 and by Lord Wade from 1976 and 1981; the Human Rights and Fundamental Freedoms Bill by Lords Broxbourne and Scarman from 1985; and the Human Rights Bill by Graham Allen from 1994 (all in Blackburn Citation1999: 303–314). See also the draft bill of rights by John Macdonald that was presented to the House of Commons by Emlyn Hooson in 1969 (in Blackburn Citation1999: 575).
8 For this view, see J. A. G. Griffith, “The Politics of the Judiciary” (1981), in Blackburn (Citation1999: 642).
9 For example, the Police and Criminal Evidence Act of 1984; Interception of Communications Act of 1985; Public Order Act of 1986; Prevention of Terrorism (Temporary Provisions) Act of 1989. For detailed discussions, see Reitan (Citation1997: 70–71), Fry (Citation2008: 165), and Stewart (Citation2013: 111–113, 435–436).
10 After the National Council for Civil Liberties had been relaunched as Liberty in 1989 with a new board of directors, it reconceptualized itself as a human rights pressure group within the international human rights movement (Klug Citation2000: 158).
11 For detailed accounts of New Labour’s election campaign under Blair’s leadership, see Driver and Martell (Citation1998: 23–31, 105–106) and Fielding (Citation2003: 181–185).
12 HRA 1998, schedule 1.
13 HRA section 3(1).
14 HRA section 2.
15 HRA section 7(7), 8(4) and 6; see also Amos (Citation2013).
16 HRA section 4.
17 HRA section 19.
18 Only subnational governments in Northern Ireland, Scotland, and Wales were formally obliged to comply with Convention rights under domestic law, which effectively created a biconstitutional system and a legitimacy gap between central and devolved legislatures (Flinders Citation2009: 645). See Section 57 of the Scotland Act of 1998; Section 107 of the Government of Wales Act of 1998, which was replaced by Section 81 of the Government of Wales Act of 2006; and Section 24 of the Northern Ireland Act of 1998.
19 In 2013, then Home Secretary of the Conservative Party and, until July 2019, British Prime Minister Theresa May argued in Parliament that “the Human Rights Act must be scrapped,” and that the United Kingdom should consider “withdrawing from the [European] Convention altogether” (Secretary of State for the Home Department, Theresa May, Hansard House of Commons Debate, July 8, Citation2013: c24). When later repeating that claim, May (falsely) lamented, “The ECHR can bind the hands of parliament, adds nothing to our prosperity, [and] makes us less secure by preventing the deportation of dangerous foreign nationals” (Theresa May, quoted in The Guardian Citation2016).
20 In a representative survey by Ipsos MORI published in March 2008, only 34 percent of participants stated that they understood fairly or very well how the HRA works in practice. In the same survey, a relative majority of 31 percent was dissatisfied with the working of the Act, compared to 24 percent of satisfied participants (Ipsos MORI Citation2008). In a representative survey by YouGov from Citation2014 on Britain’s ratification of the ECHR, a relative majority of 41 percent argued that the United Kingdom should withdraw its membership from the Convention, as opposed to 38 percent against withdrawal (YouGov Citation2014).
Additional information
Notes on contributors
René Wolfsteller
René Wolfsteller is a research fellow and lecturer in the Department of Political Science, Martin Luther University Halle-Wittenberg, Germany. His research focuses on the institutionalization and translation of international human rights norms, on business and human rights, and on national human rights institutions (NHRIs). He holds a PhD in politics from the University of Glasgow, UK, which he completed with a study of the British Human Rights Regime, and an MA in political theory from the Goethe University Frankfurt, Germany. He is coeditor, with Benjamin Gregg, of the special issue “A Realistic Utopia? Critical Analyses of the Human Rights State in Theory and Deployment,” The International Journal of Human Rights, Vol. 21, No. 3 (2017).