Gordon Nardell examines the pitfalls awaiting the Tories’ plans to repeal the Human Rights Act
WHAT A DIFFERENCE FIVE YEARS MAKE. In 2010 the Tories delighted in liberal attacks on New Labour’s human rights record, promising to “roll back” the “intrusive state”. Now, as on other issues, the Tories have reverted to type, promising to repeal the Human Rights Act (HRA) 1998 – rolling back not the powers of the state, but the rights of individuals to hold the state to account for its use of power.
The HRA was one of the 1997 Labour government’s most widely welcomed pieces of legislation. Brief and simple, it made the rights guaranteed by the European Convention of Human Rights (ECHR) – ratified by the UK in 1951 – enforceable in UK courts. Previously individuals had to complain to the European Court of Human Rights sitting in Strasbourg, a process often taking years and exposing the government to international opprobrium. Absurdly, they could not make the same complaint to a court in the UK.
The Tories intend to replace the HRA with a “British Bill of Rights and Responsibilities.” This idea is not new. The Coalition established a Commission on a Bill of Rights, which – by a majority – called for new legislation. But they failed to reach agreement on what that might contain. Now, freed of the Lib-Dems, the Tories have the HRA firmly in their sights.
The Tories’ ideas are set out in an eight page document, Protecting Human Rights in the UK. Despite the title, its aim is not to protect rights, but dismantle such protection as the HRA provides. Central to the Tories’ thinking is the idea that the European Court has overstretched the meaning of the ECHR. The Court had no business, they argue, ruling on the UK’s refusal of the franchise to prisoners, nor overriding its right to deport foreign nationals to countries where they risk torture.
A British Bill of Rights and Responsibilities will “clarify” the Convention to produce a balance more in keeping with the “original aims of the Convention” – for which read the Tories’ own views about the untrammelled powers the state should have.
Apart from revealing how disturbingly authoritarian those views are, the document is shot through with error and misinformation. It repeats the mantra that the HRA makes European Court judgments “binding” on UK courts. It does not: UK courts need simply “take into account” Strasbourg decisions. The big problem for the Tories is that national legislation rewriting the way the ECHR is applied in the UK would still leave a disappointed individual free to complain to Strasbourg. In international law, a judgment against the UK would oblige it to remedy the violation of rights and bring domestic law into compliance with the Convention. To answer this, the Tories take the same petulant approach as on the EU: attempt to negotiate an opt-out or special treatment, and if that fails, withdraw.
Whatever the rights and wrongs of the UK’s EU relationship, opting out of modern standards of human rights protection is a different proposition altogether, and has already split Tory opinion. The party’s position on civil liberties is informed by a complex mix of views from Europhiles, Eurosceptics and the libertarian right. Protecting Human Rights is largely a product of the now dominant Eurosceptics. But some of the most die-hard sceptics on UK/EU relations also belong to the libertarian camp. Former shadow Home Secretary David Davis has threatened to vote against the proposals, alongside such Europhiles as ex-Lord Chancellor Kenneth Clarke.
With a majority of only twelve, such threats are real. The government cannot assume support from natural allies such as the DUP. The ECHR is written into the devolution legislation for Scotland, Wales and northern Ireland. The NI unionists are not ECHR enthusiasts, but the nationalists are, and attempting to alter the legislation could unpick the entire settlement – a result the unionists would view with alarm. The SNP is likely (for different reasons) to resist any similar change in Scotland. So Westminster’s only option might be to withdraw Convention rights from the English while leaving them intact for the Irish, Scots and possibly the Welsh.
Will the Tories really push us to the brink? The problem is that we don’t know. The ECHR might not be perfect, but it has brought important advances in protection from torture, freedom to protest, datagathering by the state, and many other areas. Liberty, 38 Degrees and others have promised a vigorous campaign in defence of human rights. Let’s join them.
» Gordon Nardell QC, Islington North CLP, was a member of the parliamentary drafting team for the HRA.