In today’s Guardian, Matthew D’Ancona warns that David Cameron may face a successful rebellion from the ‘Runnymede Tories’ if he tries to repeal the Human Rights Act, led by David Davis. Not only would that be a major blow to his authority, it would make remaining in the EU a less attractive option in the forthcoming referendum. Human Rights experts insist that the two issues are wholly separate, although that’s open to debate. But there’s no doubt they’re politically linked. In the minds of some sections of the British public, a good argument for withdrawing from the EU will be to escape the jurisdiction of the European Court – they will think that, whether it’s true or not – and Cameron will be keen to ‘break the formal link between British courts and the European Court of Human Rights’ before the first votes are cast.
I’m conflicted about this. On the one hand, I like the idea of making the Supreme Court of the United Kingdom the ultimate guarantor of our human rights rather than the European Court. British judges are surely more reliable guardians of liberty than the jurists in Strasbourg. But on the other, I’m nervous about the rights enshrined in the European Convention on Human Rights becoming less sacrosanct, particularly Article 10, which deals with freedom of expression.
Let’s start with a straw man. The fact that the Conservatives have said in their manifesto that they’d like to repeal Labour’s Human Rights Act doesn’t mean the present government will try to disapply the European Convention, which, as the Runnymede Tories will point out, was drafted by the former Conservative attorney general David Maxwell Fyfe. On the contrary, the proposal is to embody the Convention in a British Bill of Rights.
Nor is anyone suggesting that the European Court should be completely disregarded. Rather, if the judges in Strasbourg rule that a particular British law is incompatible with the Convention, that would be treated as advisory rather than binding under the new proposal. Whether to amend or repeal the law in question would be a matter for Parliament.
So far, so good. But if the Convention will still apply, what guarantee is there that the British Supreme Court, whose judgements would be binding, will interpret it any differently to the European Court? Like many conservatives, I think it’s absurd when a non-British convicted murderer, on his release from prison, cannot be deported by the Home Office because Strasbourg has ruled that sending him back to his country of origin would violate his right to a family life. But isn’t it naive to think that British judges, many of whom are left-wing, would always side with the Home Office? It’s not as if they do at present.
The team in the No. 10 Policy Unit have come up with a solution to this problem — and this is where they stray into dangerous territory. According to the document posted on the Conservative Party’s website last year, some of the terms used in the convention ‘would benefit from a more precise definition’ so as to prevent them being given ‘an excessively broad meaning’. What this means, I think, is that the Bill of Rights wouldn’t simply reproduce the language of the Convention in every particular. Rather, it would seek to define the rights enshrined in the Convention in a way that made it harder for left-wing jurists to impose their political views through the court. In short, the British Bill of Rights would put its own particular spin on the European Convention – some would call it a ‘conservative’ spin, although I’m sure Michael Gove, the Justice Secretary, will do his best to secure a measure of cross-party support for the Bill.
My worry is that any such guidance would be rejected by the next Labour government — and Labour are bound to get back in sooner or later. It’s not hard to conjure up a scenario in which a socialist government decides to amend the Bill of Rights, replacing the right-wing spin with a more leftist interpretation. Take Protocol 1, Article 2, for instance, which talks about the right of parents to educate children in accordance with their own religious beliefs. At present, that clause gives some protection to faith schools and a Labour government that sought to abolish them could be challenged in Strasbourg. But once the precedent has been set that it’s legitimate for Parliament to direct judges about how to interpret the Convention, that protection begins to look more fragile.
Alternatively, a future Labour government might simply decide to repeal the Conservative’s Bill of Rights and disregard the Convention altogether, something that would give it a much free-er hand when it came to enacting hard left legislation. Some lawyers will argue that the Convention would still apply in this situation, just as it did before Labour passed the Human Rights Act in 1998, because the UK is a member of the Council of Europe. But what if the present government decides that the only way to escape Strasbourg’s jurisdiction is to leave the Council of Europe? Or what if the British public votes ‘out’ and that, in turn, triggers our departure from the Council of Europe? In that scenario, there’d be nothing to prevent a despotic Labour government riding roughshod over the whole panoply of human rights, including the right to free speech.
Defenders of the Tory proposal will say that the risk of that happening is very slight and they’re probably right. For me, a bigger worry is that a country that is currently signed up to the Convention, such as Russia, would cite the British government’s repeal of the Human Rights Act as an excuse to remove itself from the jurisdiction of the European Court – which is David Davis’s biggest concern, too. If Putin is still in the Kremlin when the Bill is put before Parliament, that will certainly help the rebels’ cause.
There’s another risk, too, which is that repealing the Human Rights Act could precipitate a constitutional crisis. As things stand, it is embedded in devolution legislation as well as the Good Friday Agreement and Nicola Sturgeon has already condemned the Conservative proposals as ‘appalling’. This looks like exactly the sort of thing that would provide her with an excuse to start agitating for a second referendum, although she’ll probably manufacture an excuse whatever the government does.
Don’t get me wrong. The present arrangement, whereby the will of Parliament can be thwarted by Strasbourg, is far from perfect. And it’s conceivable that Michael Gove will have addressed all the above difficulties when the Bill is ready to go out for consultation. (It’s said to be on its seventh draft.) But as things stand, the political cost of trying to repeal the Act looks likely to be greater than any gains.
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