Of all the Conservatives’ designs for the first hundred days of this parliament, none has caused more furore than the planned repealing of the Human Rights Act.
Passed into law in 1998, the act sought to bring the rights enshrined in the European Convention on Human Rights more closely into the British court system, allowing its provisions to be considered (note the bold) within the UK without the need to appeal to the European Court of Human Rights in Strasbourg, with all the costs that entails.
In effect what this means is that it made legal redress quicker, simpler and cheaper. So why would the Conservatives want it to be repealed? The answer comes in two parts, laid out perhaps most colourfully by the Daniel Hannan, a Tory MEP, in last week’s Spectator. In brief they can be termed thus: the problem of judicial activism and the problem of sovereignty.
To take the former problem, Hannan and his ilk argue that the Human Rights Act allows judges to “cheapens democracy by allowing jurists to advance an agenda that would be rejected at the ballot box”. By this he means that judges can interpret broad laws in a manner that is pleasing to them, making them masters rather than servants of the law.
As he acknowledges, this is not a problem that is confined to the Human Rights Act. Even the most circumscribed court will occasionally have to interpret a law in a novel fashion rather than rely on previous cases, or what is known as “precedent” in legal jargon.
On this count at least, Hannan seems to have garnered sympathy from lawyers. Matthew Scott, a criminal barrister who is mostly critical of Hannan’s piece, called this “a perfectly defensible point of view”. However he went on to make this observation:
[Hannan’s] solution to meddling judges playing at politics is not to abolish the rights but to keep them; and, what’s more, to augment them. To do this he suggests a huge amendment to the 1688 Bill of Rights. As well as the existing Convention rights (perhaps rebranded as “British” rights), Mr Hannan’s amended Bill of Rights will include guarantees of “freedom of contract and employment, freedom from oppressive, arbitrary or punitive taxation” [among others].
How a judge – even a red cheeked John Bull living entirely on roast beef – would be supposed to apply a new right of freedom from “punitive taxation” without trespassing on political ground is not explained. One would have thought that of all issues, setting the level of taxation was quintessentially one for Parliament rather than for judges.
Then follows the sovereignty problem, which argues that the Human Rights Act “gives direct effect to the rulings of the Strasbourg court in Britain”. What Hannan believes is that Britain is beholden to a foreign court, and has in effect lost control of its lawmaking ability.
This, however, is untrue. The Human Rights Act does not oblige British courts to bow to the decisions of Strasbourg. As the bill itself says: “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … judgment, decision, declaration or advisory opinion of the European Court of Human Rights.”
Whilst the Old Bailey must listen to the European court it is then free to ignore it, and in doing so can preserve the principle of parliamentary sovereignty that is the central point of the British constitution (or, more accurately, the lack of constitution in written form).
What is true is that the British must (in theory) abide by the European Convention on Human Rights as a matter of international law. But as Scott also points out, repealing the Human Rights Act would not alter this fact:
What of the judgment, also mentioned by Mr Hannan, that the blanket ban on prisoners voting is an interference with their human rights? Again, it had everything to do with the European Convention but nothing whatever to do with the Human Rights Act. The prisoners could, and no doubt would, have taken their case to Strasbourg even if the Human Rights Act had never been passed.
What exactly the Tories hope to achieve by the repealing of the Human Rights Act and mooted introduction (or updating) of a British Bill of Rights is thus mysterious. Right now the details of a new Bill of Rights are obscured from us, which makes it hard to see whether it would be of any benefit.
There are also a mountain of political hurdles, not the least of which is the reliance of the Good Friday Agreement in Ireland being predicated in part on the Convention. As David Allen Green, lawyer and legal commentator, writes, surpassing all these in a hundred days seem “unlikely”.
Update: Following the above objections the Tories appear to have temporarily shelved plans to repeal the Human Rights Act, with no mention of it in the Queen’s Speech, which lays out legislation for the year ahead.
Header Image – European Court of Human Rights, Strasbourg by Nicoleon