Opinion: Human Rights Reform – where the nuance could be more dangerous than the headline

The Conservative Majority government has recently announced the Michael Gove is to be our new justice secretary, and that part of his agenda is the Conservative manifesto promise to scrap the Human Rights Act. The Conservatives claims this would

Break the formal link between British courts and the European Court of Human Rights

in order to

[l]imit the use of human rights laws to the most serious cases,

a promise that turns the stomach of most Liberal Democrats I know committed to universal rights.

Perhaps if the plans did not, as former Attorney General Dominic Grieve described, contain “a number of howlers” the Conservatives would be less convinced by the need for reform or even the prospect of their success. I don’t claim to be more than a law student (and a procrastinating one at that) and but here I’m going to contribute some brief comments taken from a year of public law essays.

Firstly, the Human Rights Act has been fundamentally significant. It lets us in the UK rely on our rights in the European Convention on Human Rights in UK courts for the first time, increasing human rights cases significantly including detention, immigration, privacy, voting and so much more. Until the Act, these cases had to exhaust UK courts and then if UK law prevented judges from upholding these rights they could take their case to the European Court of Human Rights – a process than took about 5 years.

Secondly, Article 1 of the Convention requires states to secure its contents, but there is no requirement for to do that with legislation. Until the Human Rights Act the UK’s sole means of complying with the acts was through political adherence. Unless the conservatives go the whole hog and end our status as member states, scrapping the Human Rights Act has more operational significance than content.

Thirdly, prisoner voting has almost become shorthand for meddling foreign judges telling our judiciary how to decide cases of UK law. In fact, though the Court of Human Rights has famously declared the UK’s blanket ban ‘disproportionate’ (i.e. we could still exclude prisoners from registering to vote, but we need to refine the legislation we use to exclude them) there is no legal reason UK judges could not find in favour in the government in future. The Human Rights Act places the UK judiciary only under obligation to ‘take into account’ decisions of the European Court of Human Rights (s.2). But as they did before The Act judges could well continue to take these decisions on board should they so desire.

The Act also requires UK judges to read legislation passed by the UK parliament in a way that is compatible with the text of the convention. Where they can’t, they can choose to issue a ‘Declaration of Incompatibility’ which does no more than suggests political pressure for the UK government and parliament to change the legislation. The exception to this is legislation passed by devolved assemblies which must be compatible with the human rights act or it is ‘not law.’ Given that The Scottish Government has said they will invite Holyrood to vote against any repeal and that compliance with the Human Rights Act was written into the Good Friday Agreement, The Conservatives could be heading towards some serious constitutional tension.

Article 46 requires States to comply with judgements we are party to. This is a political obligation on the government, parliament and institutions which doesn’t require domestic judges to do anything. The fact that we have refused to comply with the prisoner voting decision says more about parliament’s desire to hold on to its traditional supremacy than it says about the Human Rights Act.
What is certainly true is without the Human Rights Act we have no statement of Human Rights in Domestic Law and our ability to rely on the content of the ECHR in UK courts may be limited depending on the proposals Gove comes up with.

But there’s been a bit of hypothesising amongst public lawyers that recent UK case law has shown UK judges using their powers to develop common law to protect human rights rather than rely on the Human Rights Act. In R (Osborn) v Parole Board [2013] UKSC 61 the court was keen to articulate the importance of domestic human rights law principles even where the Human Rights Act has provided them with a basis from with to expand UK judge made law. At the moment this is no more than suggestion, but it could mean judges are tentatively preparing for a legal system with no Human Rights Act

There’s definitely scope for lawyers wiser than I to disagree with what I have written. However, I believe that the plans to scrap the Human Rights Act suggested by the Conservatives have set out to address a “formal link” between UK and ECHR courts which does not exist. In fact, the formal link exists between the government and the Court and the only way to break that would be to withdraw from the Convention. But changing the way domestic courts can use human rights could limit criticism from inside the UK and make it easier for parliament to ignore human rights concerns. The risk is losing human rights as a universal protection from government and parliament to ‘privileges’ we hope they are willing to recognise.

* Eilidh Dickson is a Liberal Democrat member from Aberdeen who is just about to sit her final law exams.

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22 Comments

  • Rather than letting the issue of Human Rights become a discussion about Europe (which many Conservative voters I have spoken to have tried to do) we should concentrate on building support for a Bill of Rights to entrench Human Rights so deep into the British Constitution that it can never be repealed

  • George Carpenter 13th May '15 - 11:12am

    The word “uk” occurs 14 times in this article.
    Maybe add “God Save the Queen” at the end?
    Other than that, I agree, it makes me feel physically ill whenever I remember that the tories want to abolish the human rights act, as British citizens clearly aren’t human.

  • Jane Ann Liston 13th May '15 - 11:59am

    A particular worry must be how other countries might react, especially in the treatment of our citizens, should the UK withdraw.

  • Expect a huge strain on the NHS from returning Spanish pensioners

  • Keith Redwood 13th May '15 - 12:33pm

    Eilidh makes some interesting points, however when the Scottish Parliament was established the EHCR was built into its Constitution and ONLY the Scottish Parliament can change that. In fact there may need to be a plebiscite to allow the people of Scotland to agree/disagree with such a move. Constitutional tension doesn’t go near describing the position the UK would find itself in. The position of the UK Supreme Court, which includes Scottish judges, would find itself in very strange territory indeed!

  • I had though after Graling made such a mess attempting to come up with something before they would have given up this particular folly. Any minister giventhis brief will be cursing it.

    I dispare that they have started but I suspect that it will not lead anywhere (given earleir attempts)

  • Malcolm Todd 13th May '15 - 12:58pm

    Psi
    I would have agreed, until I realised that Michael Gove is now the minister in charge. I’m afraid he will be delighted to charge full tilt into this.

  • The Scottish Tories committed themselves to a Holyrood veto of changes to the HRA. Gove is either going to have find some fudge or cause a constitutional crisis. What was that they were saying about chaos?

  • @Malcolm Todd I tried to welcome you back as a member on another thread – you are a consistently measured and liberal voice on this forum. I’m sure your local party will also be glad to have you too, but don’t make a rod for your own back too soon! 🙂

  • matt (Bristol) 13th May '15 - 1:51pm

    – Don’t forget that Gove inherits from the previous government a request from the HoL to work hand in glove with the DoH on a throrough going review of other human-rights linked legislation including the Mental Capacity Act (and the Deprivation of Liberty Safeguards related thereto) and the workings of the Court of Protection.

    Until we see the new ‘Bill of Rights’ we cannot say what will happen, but there are many aspects of British law and practice in several sectors over the last 10 years where the HRA is key. It’s not just about the lawyers.

    Also, note that the Labour government wrote the HRA into the foundational documents of the NI assembly and the Scottish Parliament.

    I really hope this blows up in Gove’s face; but if it doesn’t I hope there is a genuine cross-party coordainted campaign on this, led by a prominent consensus figure — Ken Clarke? Shami Chakrabarti?

    The HRA is one of the best things Labour did. I hope they take up the cudgels and accept help from outside sources instead of closing the doors and getting stuck into each other.

  • One of the great problems with the current devolution settlement in Scotland is that the Westminster ultimately CAN impose anything it likes on the Scottish parliament, including changing the 1998 Scotland Act which is where the Convention and HRA are mentioned. The requirement for legislative consent is only a convention that Westminster can ignore. It was always only a matter of time before Westminster sought to make a major legislative change without Scottish consent.

    This is exactly the sort of reason that so many liberals supported a Yes vote last year, many of which left the party in order to be free to do so. Independence would have allowed us to enshrine human rights and limit the power of the state in a written constitution for our new nation.

    The silver lining is that an attempt to repeal the HRA without Scottish consent could represent the sort of “material change” in circumstances that Nicola Sturgeon set as a requirement to legitimise a new independence referendum.

  • I think may people will be happy if the HRA et al can be amended so that there is less opportunity for it to be used by non-UK residents against UK residents. Whilst these might form a very small number of cases, they have garnered press coverage, particularly in the tabloids, being seen to “close a loophole” will be high on the political agenda.

  • @Alex H. Sounds sensible , but what guarantee is there that the govt wouldn’t keep modifying it and adding clauses, exemptions, after every adverse judgement? A Bill of Rights that can be changed at the behest of a tabloid campaigns , is no Bill of Rights. The beauty of the ECHR is everyone has the same rights .

  • jedibeeftrix 13th May '15 - 4:01pm

    And yet we retain and support the principle of the supremacy of parliament. You can’t have it both ways.

  • matt (Bristol) 13th May '15 - 5:40pm

    Jedi – have Gove’s proposals been seen by parliament or voted on yet?

    No. So can we oppose them appropriately through parliament seeking to oveturn them with the support of liberal-minded Tories – YES. LET’S DO IT.

  • Jedi

    I’m not committed to the supremacy of parliament, I would hapily have a constitution that made some laws more difficult to ammend than others.

  • Malcolm Todd

    I’m not sure if Gove will be as keen as people are expecting. There isn’t any “glory” in this and it is an accident waiting to happen.

    The opotunity to look silly is high and the risk/reward payoff is not good.

  • Richard Sangster 14th May '15 - 8:24am

    A bit ironic that Eilidh is studying in Aberdeen, where Michael Gove comes from. Also a bit embarrassing that my cousins, who are lawyers, went to the same school as Michael Gove.

  • Denis Loretto 14th May '15 - 11:26am

    Good to see Keir Starmer, former Director of Public Prosecutions and new Labour MP, writing in the Guardian about this. I posted the following in the thread on his article –

    “One of the main reasons for introducing the HRA into UK law was to avoid the need for applicants to go to the European Court of Human Rights as the ultimate appeal court with all the expense and effort that entailed. In effect the provisions of the ECHR would be accessible in our own country and administered by our own judiciary. The removal of the HRA and its replacement by a British “Bill of Rights” would not remove the right of any future applicant to go to the European Court of Human Rights in Strasbourg. To my mind the real objective of those pushing for this change is for the UK ultimately to pull out of the ECHR and, as a consequence, out of the Council of Europe. As Keir Starmer says (what a welcome entrant into the House of Commons he is) “That would leave the UK outside the family of nations upholding universal human rights and would hugely diminish our reputation abroad.”

    Sorry Keir – that is not going to stop them.”

  • I am pretty clear that we should not deprive prisoners of their voting rights. They have probably committed an offence, and perhaps a serious offence, but they remain human beings and citizens.

    The snag for me is that, in thew case of large prisons, which are increasingly becoming normal, the presence of a large number of additional people will affect the result in that constituency. Enough to make candidates think of wanting to canvas in the prison…..

  • Malcolm Todd 14th May '15 - 5:53pm

    Paul King
    I think the answer to that is that prisoners would be registered from their former address (like overseas voters now), and would therefore be scattered fairly thinly across the country.

    TCO
    Thank you! (I would say I’m glad to be back, but that’s an open question as yet.)

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