Human Rights Act: Some questions for Mr Grayling and Mrs May

Craig Prescott 10.51am

Over the weekend, Chris Grayling, the Justice Secretary and Lord Chancellor, indicated that a Conservative majority government could repeal the Human Rights Act. Meanwhile, Theresa May, the Home Secretary, has suggested withdrawing from the European Convention on Human Rights (ECHR) itself.

These are two very different things, and there is some muddled thinking involved here; but if both were to be pursued the policy could be called ‘Withdrawal and Repeal’.

As Mr Grayling has admitted himself, there needs to be a lot of work put in to the detail (to put it mildly). But as work towards possible 2015 manifesto pledges starts, here are some questions and issues that need to be considered.

  1. Why? It can’t be for political advantage. At the last election, 3.1 per cent of people voted for a political party who advocated ‘Withdraw and Repeal’, namely UKIP. By contrast, a combined 52 per cent of the electorate voted for Labour and the Liberal Democrats, who did not. Whatever Mr Grayling and Mrs May may think, the electorate has shown time and time again disinterest in tinkering with constitutional matters. This does not look like a massive vote winner to me, in face of more pressing matters such as living standards and the broader economy.
  2. Replacement? A British Bill of Rights has been suggested, but to what end? The content of such a Bill of Rights is likely to be similar, if not identical, to the content with one or two additions (such as a right to a jury trial) to make such a document ‘British’. Take a look at the Articles incorporated into English Law by the HRA, the Right to Life, Prohibition of Torture, Prohibition of Slavery and Forced Labour and the Right to a Fair Trial and so on. Would you like to live in a country that does not provide in law for these  protections? As one of the finest judges of recent times, Lord Bingham stated in his book the Rule of Law, countries that do not make such protection in law tend not to the best of places to live. Belarus or North Korea? Another issue is how are the courts going to interpret any such legislation. Experience before the HRA suggests that on the whole, the courts will take notice of the ECHR, as they do of other international treaties and case-law for interpretative guidance.
  3. Leave it to Parliament? If ‘Withdrawal and Repeal’ is pursued, then the position will be more akin to the days before the HRA, but without a route of appeal to Strasbourg. This is a dangerous option, as it risks pitting the courts and Parliament in direct opposition. It is easy to think that human rights began with the HRA, but that neglects the strong - if imperfect - vein in the common law that protected people’s rights before the HRA. One could go back to the 17th century, but during the 1990s the courts began to recognise at common law certain rights as being of ‘fundamental’ status, such as access to justice. This fundamental status means that the courts require strong signals from Parliament before the courts hold that they can be interfered with. This is an open-ended category of right, creating a clear risk of an ongoing conflict between the courts and Parliament, potentially giving more scope to the courts, the exact opposite of what the Lord Chancellor, Mr Grayling, wants. Such an approach would be destined not to end well.

There are other issues to consider. The devolved institutions are required under the devolution framework to comply with the ECHR at all times. Any amendment of this requirement is likely to require their approval, which the Commission on the Bill of Rights indicates will not necessarily be forthcoming as approval of the ECHR is generally seems to be higher outside of England than within it. (This raises concerns that the Conservative Party becoming ever more an English, and not British Party). Further, the EU is engaged in an ongoing process to become a signatory to the ECHR, meaning that even if ‘Withdraw and Repeal’ is pursued, the ECHR will still be a highly relevant to UK law as long as Britain remains a member.

All of the above is not to say that the human rights architecture of the UK and Europe is perfect. Far from it. There are issues over the length of time it takes to hear cases, and the number of appeals possible in human rights litigation are both issues about which courts themselves have voiced concerns. A close look at the process shows that the vast majority of the time, it is these problems which lie at the root of problems with human rights. After all Abu Hamza still got deported to America. Is it really necessary to embark on such a hazardous journey, jeopardising a central tenet of the unwritten constitution that Parliament and the courts respond to each other in a dialogue and understanding, to solve a problem which for the vast majority of the electorate is simply not there?

Ultimately, the problem that Mr Grayling as Lord Chancellor (who has a duty to uphold the rule of law) needs to grapple with is that some human rights are innate in the liberal democracy to which he wishes to belong and to strengthen. Any human rights apparatus constructed does not create rights but merely recognises them.

Craig Prescott is a member of the School of Law at the University of Manchester. Follow him on Twitter @craigprescott

The EU, referendums & general elections are a toxic mix

Craig Prescott 11.32 am

It has been argued in this blog and elsewhere that a general election in 2015 should be combined with a referendum on EU membership. This is an incorrect approach both for political and constitutional reasons.

The constitutional reasons first. For the referendum to have legitimacy, it is essential that the terms of the referendum are clear. Are those who are argue for a referendum advocating for the total withdrawal from the EU or do they advocate for the renegotiation of Britain’s relationship with the EU? These are enormous questions not to be treated lightly. With movements towards a political union, we may be at risk of chasing a moving target. Further, to suppose that these questions will be resolved in time to allow the primary legislation required (as this may not necessarily be covered by the European Union Act 2011) is a very big assumption indeed. Essentially, we are talking about a settlement of whatever form to be reached by the end of 2014 at the latest. This also assumes that events do not overtake such a timetable, and referendum being needed before then.

The political reasons are easier to explain. The assumption made is that a proposal to withdraw from the EU, be that totally or partially would benefit the most eurosceptic of the main political parties, the Conservatives. There are two problems with this. It assumes a negative referendum, but should the Government re-negotiate Britain’s relationship with the EU between now and 2015, the Conservatives would have little option other than to support this, which maybe at odds with significant sections of both the parliamentary and the wider party. Neither would it satisfy the demands of UKIP voters.

The second difficulty is that the argument assumes that voters for a more eurosceptic position in a referendum (however so defined by its terms) would be more likely to ignore their prevailing political allegiance and vote Conservative in the concurrent referendum. When the British history of referendums is considered this argument lacks any foundation. The electorate consistently show that to a significant degree, they are capable of separating their party preference from how they vote at referendums.

In the general election before the 1979 devolution referendum in Wales (October 1974), Labour won 50% of the vote, but yet only 20% of the same electorate supported the official Labour view in the referendum. But yet these voters returned to Labour in the following  1979 election with 47% of the vote. Even when an election and referendum are held on the same day, voters do not necessarily follow the recommendation of their party. In 2011, the SNP won a historic majority in the Scottish Parliament with 45% of the constituency vote, yet only 36% of the electorate followed the SNP’s recommendation to vote Yes in the AV referendum. The Conservatives have also been here before. Attempts during the 2001 election campaign to turn it into a referendum to “Keep the Pound” where wholly ineffective as the electorate were guaranteed by all main parties of a referendum on Euro membership (which thankfully has never materialised).

It must also be stressed that the Conservative Party do not enjoy a monopoly on Euroscepticism. At times Labour have been more eurospectic than any other main party.   Old habits die hard amongst their MP’s, but more importantly their voters. Ed Milliband, by seemingly considering the issue, is tapping into this vein of thought amongst his party.

Essentially, the issue of Britain and the EU is not an issue about which to make such a nakedly political judgement. The electorate is sophisticated enough to see through that. Britain’s relationship with the EU is a deeply pragmatic one. Whilst it is in Britain’s interest to be a EU member it will remain so. However, when that is no longer the case, Britain will seek to renegotiate the terms of membership and if that proves impossible it will withdraw. To an EU lawyer, it is essentially the proportionality principle writ large.

The political party that communicates this to the electorate in the most effective way will gain politically, but the party that transparently seeks to exploit these issues risks losing everything for little potential gain.

@craigprescott

Teaches Constitutional and Administrative law at Manchester University.

Lords reform: time for a fresh approach to an old problem

Craig Prescott 10.17am

Some people think a referendum is necessary, others don’t. Both sides are correct but they miss the fundamental issue.

Nick Clegg has argued that reform should not be dependent on a referendum because all three main parties support reform, and further, they committed themselves to reform at the last general election.

David Cameron, while still open to the idea of a referendum, also believes there are many arguments against holding one.

Both positions are untenable as far as the draft Bill is concerned, or the recommendations proposed by the majority of the Joint Committee for the Bill.

As all three main parties were in favour if reform at the last election, voters were presented with Hobson’s choice and couldn’t express their views either way on the issue. Furthermore, the Labour party included a commitment to a referendum in their 2010 manifesto.

Significant constitutional change should be as inclusive as possible, whereby the agenda is not wholly dominated by a section of the political class. This is why in many written constitutions around the world you would not now be reading this article, as it would be legally required for such proposals to go before an electorate in a referendum (the Australian Constitution is such an example).

Furthermore, it would be odd if a referendum was required to change the method of composition for the Lower House (the AV referendum) but not for a more radical alteration of the Upper House.

On a more principled level, it seems strange to attempt to introduce democracy to the House of Lords in an undemocratic way by refusing to hold a referendum. In this respect, the view of a majority of the Joint Draft Bill Committee in strongly suggesting a referendum is to be commended.

However, those who argue against a referendum are also correct. It all depends on what one means by ‘reform’. At the risk of criticising the Bill committee in the way you might criticise a lemon for not being an orange, they have not considered other proposals for reforming the House of Lords.

Incremental reform, for instance, would not require a referendum. This is the line taken in the Alternative Report, published independently by a minority of the membership of the Bill committee. This report proposes to harness the momentum for reform to propose legislation that could readily be included in the forthcoming Queen’s Speech. It should remove the remaining hereditary peers, permit peers to take permanent leaves of absence, introduce a minimal attendance requirement, and allow for the retirement of peers. Such legislation would be more politically acceptable to all members of all parties. It contains nothing controversial and could be a basis for more long-term reform.

Which according to the Alternative Report should be the responsibility of a Constitutional Convention. This is a common process elsewhere in the world, such as in Australia and certain federal states in the USA. The convention would consider the issue fully and in a broader manner than the current Bill committee has been able to do. Its membership would comprise constitutional experts, current Westminster politicians and representatives of devolved assemblies, local government, businesses and faith groups. It must operate apart from the political cycle. Ultimately, the convention’s proposals would be put to the electorate in a referendum, for the reasons offered above.

The fundamental issue missed by participants in the present debate about a referendum is that it is no longer sufficient for the ordinary political process to dominate the debate. It has dominated for a century, over two Royal Commissions, innumerable policy papers, inconclusive parliamentary debates and votes and, today, a draft Bill with a split committee and two diverging reports.

It is time for a fresh approach to an old problem.

Craig Prescott teaches Constitutional & Administrative Law at the University of Manchester.

Follow Craig on Twitter @craigprescott

It is pure folly to reduce the number of MPs

Craig Prescott 11.58am

At the last general election, both coalition parties pledged to reduce the size of the House of Commons. The Conservatives offered a 10 per cent reduction (manifesto is oddly no longer available online), while the Lib Dems (link here) wanted to cut the number of MPs by 150. The eventual Coalition Agreement is actually weaker than both parties’ original pledges, as Parliament will only be trimmed by 50 MPs from its current level of 650.

This 600 figure was created by the negotiating teams during those ‘Five Days in May’. That episode revealed one of the worst aspects of our unwritten constitution: essentially, just six chaps in a room determined how many MPs will sit in the main chamber of our national legislature. In most other countries in the world the number of seats in the legislature is defined in a constitution - in the USA, each state is allocated two Senators - and the process of changing this is considerably more laborious than chatting over some tasty biscuits.

There is no underlying rationale for this reduction. For the Liberal Democrats it was part of a grander constitutional scheme, the only part of which that may emerge is House of Lords reform (but even this could be in difficulty).

For the Conservatives, the rationale is one of reducing cost both in line with ‘deficit reduction’ but also as part of the response to the MP’s expenses scandal.

Another justification, considerably more viable, is to equalise the number of constituencies. A fundamental principle is that each vote should count as equally as possible. However, it does not automatically follow from this that the number of MPs had to be reduced. Any party gain is likely to be minimal. Psephologists believe the bias against the Conservatives will be reduced, but only by 3 per cent.

As far as I can tell there has never been any serious consideration as to the optimal sum of MPs. There should have been some thought dedicated to this before committing to a final number, and it may well be the case that considerably more or fewer MPs would be needed.

My view is that Parliament would be better served by more rather than fewer MPs. The reduction of MPs will not be followed by a corresponding reduction in the number of Ministers (the ‘payroll vote’). This is a shame. Much has been made of the quality of the 2010 intake and the fact that MPs are more rebellious in this Parliament than at any point since 1945.

Furthermore, there have been procedural reforms to enhance the role of the backbench MP, in particular the creation of a Backbench Business Committee. Parliament matters again.

But fewer backbench MPs means fewer types of people being represented in Parliament, at a time when people are concerned (whether rightly or wrongly) about a so-called political class with little ‘real-world experience’ outside of Westminster. Reducing the number of MP’s does nothing to alter this perception. While expertise is often an argument against House of Lords reform, expertise is also provided by MPs in the commons. The current chamber comprises of the usual smattering of lawyers and businesspeople, but also doctors, academics and economists and former members of our armed forces.

On certain major issues such as the EU and human rights, it is groups of backbenchers rather than the leaderships of parties that tends more closely to represent the views of the electorate.

The ‘gene pool’ for Ministers is also reduced. This may have been one reason behind Gordon Brown’s ‘Government Of All the Talents’, as by the time he became Prime Minister, he had, to some extent, run out of suitable backbenchers.

Parliamentary committees could also be harmed. This is a growth area in MPs’ workloads, so it is inevitably going to be more difficult for the smaller number of MPs to fulfil their commitments in this area alongside all their other commitments without an increase in resources (which will hinder the overall intention to reduce the cost of politics).

The greatest irony in all of this is that should Scotland separate from the rest of the UK in in the forthcoming referendum (whenever that is held), the cost of politics in Westminster will be reduced at a stroke, and the opportunity to revisit constituencies would have emerged. Boundaries could then be equalised without any of the harmful side effects mentioned above.