Legally illiterate

Posted by Bella Sankey on 02 October 2014

Today the Conservatives unleashed their long-awaited plans to repeal our Human Rights Act (HRA) and replace it with a so-called “British Bill of Rights” (BBR). The proposals are legally illiterate, politically provocative and designed to put us on a collision course with the Court of Human Rights and likely lead to the UK’s ultimate departure from the Convention on Human Rights and the Council of Europe. They will also further destabilise the Union.

The plans are clearly intended to diminish the rights of everyone in Britain – in particular vulnerable minority groups and children with parents facing removal or deportation. Their publication after the Conservative Party Conference is a clear attempt to avoid expert scrutiny.

Here’s how the various proposals unravel upon closer inspection:

PROPOSAL: Repeal Labour’s 1998 Human Rights Act

  • The HRA increased British sovereignty. Pre-HRA, UK cases were argued in Strasbourg without any judgment from a UK court. Post-HRA, British judges now rule on all human rights claims arising in the UK and influence Strasbourg jurisprudence in those cases that proceed to the Court. Repealing the HRA and passing a BBR with amended rights will increase Strasbourg’s supervision of the UK, making it more like a Court of first instance once again.
  • Repealing the HRA will cause fresh upset for the Union. It will not include Scotland (as the SNP has confirmed that it will not repeal the HRA in Scotland) and a proposed “British” Bill of Rights will risk tensions in Northern Ireland. It may end up being a Bill of Rights for England and Wales.
  • The HRA is not “Labour’s Human Rights Act”. It was passed with overwhelming cross party support and Tory leadership endorsement. It is deeply un-Conservative to propose a constitutional bill of rights that is nakedly partisan.

PROPOSAL: Break formal link between British courts and the Court of Human Rights. In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg. This will make the Supreme Court the ultimate arbiter of human rights matters in the UK

  • Britain’s courts are required only to “take account” of Strasbourg judgments, not to follow them. The HRA did not make Strasbourg a precedent-setting Court, as the proposals claim. This has repeatedly been made clear by Britain’s senior judiciary.
  • British courts already regularly depart from Strasbourg jurisprudence to take account of UK laws, traditions and customs.
  • This proposal will not increase the Supreme Court’s constitutional standing. It is already the ultimate arbiter of human rights cases in the UK but, if we remain part of the Convention, British people will still be able to take claims to Strasbourg once domestic litigation is exhausted. The dilution of Convention rights proposed makes it more likely that Strasbourg will find against the UK.
  • The Conservatives have done a political u-turn on this issue - when the Human Rights Bill was passed they tried to amend it to say that British Courts “shall be bound” by Strasbourg but this was ultimately, sensibly, rejected by Parliament.

PROPOSAL: End ability of the European Court to require the UK to change British laws. Every judgement against the UK will be treated as "advisory" and will have to be approved by Parliament if it is to lead to a change in our laws.

  • The Court has no ability to require the UK to change British laws. Parliamentary sovereignty is intact, as made clear by the non-implementation of the prisoner voting judgment. But the British Government has ratified the Convention and so undertaken to comply with its international law obligations to respect the decisions of the Court.
  • Treating judgments as “advisory” would put the legislation in direct conflict with our international obligations, put the UK on a collision course with the Court and mark the UK’s likely departure from the Council of Europe.
  • This would do immeasurable harm to the international standing of the UK and weaken our political capital and influence in Europe.
  • A parliamentary process to “approve” Strasbourg judgments is a dangerous precedent worthy of a totalitarian regime. Why not allow Parliament to “approve” judgments of the Supreme Court? In fact why bother with the Courts at all – why not have individuals come to Parliament to have their cases “approved” or rejected by Parliament?
  • NB: Despite Conservative claims, Parliament has not actually rejected the Court’s prisoner voting judgment. It has not been asked to vote on a Bill on possible reform. In 2011, 256 MPs voted on a mischief-making motion on the issue but this is a fraction of the 650 MPs in Parliament. On the contrary, in December 2013, a cross-party parliamentary committee tasked with looking at the issue recommended that voting rights be granted to all prisoners serving 12 months or less. It concluded that there are no convincing penal-policy arguments in favour of disenfranchisement.

PROPOSAL: Define much more clearly when and how human rights laws in the UK are to be applied. This will end the ability of the Courts to decide unilaterally to apply human rights laws to whole new areas of public life.

  • Parliament has already defined when and how human rights laws apply when it passed the HRA. The Convention rights have to be upheld by public bodies (e.g. police, social workers, Government departments etc) when dealing with members of the public. The Courts do not decide new areas of public life where they are to be applied.

PROPOSAL: Limit the use of human rights laws to the most serious cases. They will no longer apply in trivial cases.

  • This is a clear statement that the Conservatives want to take away certain rights of the British people.
  • It is chilling that a political party of powerful politicians thinks it is best placed to decide when human rights shall or shall not apply, and which cases are trivial.

PROPOSAL: Balance rights and responsibilities. People who do not fulfil their responsibilities in society should not be able to claim so-called “qualified rights” in their defence in a court of law. 

  • The criminal and civil law are full of responsibilities that are enforced by the State and have to be obeyed by ordinary people.
  • The HRA is one of the few laws that allows ordinary people to hold the State to account for abuse, mistreatment, negligence etc.
  • Most of the rights in the HRA are already limited and qualified to take account of the rights of others and the wider interests of society.

PROPOSAL: Ensure those who pose a national security risk to this country, or have entered it illegally, cannot rely on questionable human rights claims to prevent deportation.

  • This nasty proposal would disapply the prohibition on torture and right to respect for family life to foreign nationals facing removal or deportation.
  • It will put us in clear breach of the Convention and will not be able to stand if we want to remain part of it. Strasbourg has been very clear, time and again, that the prohibition on torture is absolute and must be applied to all, regardless of nationality, race etc.
  • It will also affect the rights of innocent British children, whose interests will no longer be considered when the courts are considering the deportation of one of their parents.

Mission Creep?

  • The Convention was drafted in 1950, at a time when, across much of Europe, homosexuality was still illegal; marital rape, corporal punishment and discrimination against illegitimate children were still legal; and developments such as the internet, IVF treatment, DNA profiling and the prevalence of human trafficking could never have been envisaged. If the Convention were applied according to the technology and social attitudes of the 1950s, rights protection would stagnate. Instead, the Convention is rightly interpreted to cover human trafficking as well as modern day slavery and excess DNA retention of innocent people.
  • While the interpretation of the Convention has kept pace with changes in society, it still rules only on fundamental civil rights. It doesn’t intervene with social or economic policy decisions.
  • Conservatives claim that the prisoner voting judgment represents "mission creep". In fact the UK signed and ratified Article 3 of the First Protocol (right to free elections) in 1952, and it entered into force in the UK in 1954. The right to vote is a fundamental civil right, not a “social policy” as they have unsuccessfully sought to claim.