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

Hands up: who understands the PCC elections?

Timothy Barnes 10.41am

Across England and Wales last Saturday, small groups of volunteers were working to help candidates in the first election for Police and Crime Commissioners (PCCs), which will take place tomorrow, 15th November.

I was in Cambridge for a couple of hours, helping Sir Graham Bright in his bid to become PCC for “Cambridgeshire and Peterborough”, so covering the City of Ely, where I was born and raised. Sir Graham’s campaign was supported by local councilors, party members, Cambridge University students and not one, but three MEPs: Vicky Ford, Geoffrey Van Orden and David Campbell Bannerman.

Asking around my friends on Monday morning, I was struck by how few people seem to be aware of the elections, and even less of the candidates, in their areas.

Turnout everywhere is expected to be low, so much so that at this point 20 per cent might be considered a good result. Regular listeners to the Today programme would be aware of issues that have made it difficult for independent candidates to stand - such as relatively high deposits (£5,000 versus the £500 for a parliamentary election) - but are probably ignorant of what PCCs will actually be able to do, or why anyone thinks we need them. Like so much of the media, Today has covered perceived problems with the principles of the PCC elections, rather than the issues that those elected might be expected to deal with.

There will be no vote in London, where the Mayor already has oversight of the Metropolitan Police. It is possible that London-based journalists and news outlets have covered the story less than might have been the case had London been involved, but that can’t account for the lack of excitement in most local media. It is true that many local papers have covered basic information on candidates through interviews or profiles, but there has been little debate about their plans or coverage in the editorial pages that would have more usefully served their readers.

The result is that most voters are fairly apathetic, many are ignorant about the role, and a good number are factually wrong about what they believe will happen.

In Cambridge, a reasonable proportion of the people to whom I spoke were unhappy with what they saw as the politicisation of the police. They saw election of PCCs as an unwanted involvement of elected representatives in the way the police service is run. However, most were unaware that local politicians, usually councillors, already sit on Police Authorities, which currently oversee police activities. What is more, their concerns seemed to be more about whether PCCs would be able to interfere in police investigations rather than issues over priorities of local policing, support and other topics that the candidates are campaigning on.

I am not aware of any candidate in these elections, whether party-backed or independent, who has not pledged to fight for politics-free police investigations and support for front-line policing. But there are things that PCCs will be able to do that will effect the lives of ordinary people and those voters should be able to express their views at the ballot box having received more information.

In Cambridgeshire, there is a budget of almost £140 million for the local police force and the elected PCC will have a strong say in its priorities. Sir Graham is looking to find ways to separate the oversight of the police from their day-to-day activities and intends to move the oversight function of the PCC out of the existing police headquarters building creating a clear division between the two. He also hopes to support local organisations that support victims of crime, such as rape crisis groups and crime prevention schemes, including the NFU’s FarmWatch, which helps protect rural communities, a major issue for much of Cambridgeshire beyond its three cities.

Other candidates have different spending and policing priorities that voters might prefer but it is hard for anyone to make an informed choice with so few views having been given a decent airing or subjected to much public or press scrutiny. I have met with similar comments when making telephone calls on behalf of candidates in Cumbria, Derbyshire and elsewhere across England.

Anyone seeking elected office needs to rely on the media to help spread word of their activities and policies. This is particularly true for independent candidates, who lack access to an active supporter base used to running campaigns, distributing leaflets and contacting voters. That has not happened here and while it is understandable that some people object to the very idea of electing PCCs, that does not change the situation: there will be an election for them on Thursday and voters should have been better served in learning about the candidates and their policies.

If you want to know more about any candidate in the PCC elections, the Home Office websites has a complete list of candidates. http://www.choosemypcc.org.uk

Follow Timothy Barnes on Twitter @timothy_barnes

No Cabinet minister deserves to stay in post more than Theresa May

Giles Marshall 10.24am

John Reid, now Lord Reid, used to be Tony Blair’s ‘man for all seasons’. Regularly shuffled around key ministerial posts, the ebullient Scot was Mr Blair’s blunt, aggressive point man.

Yet even Reid was aghast on arrival to the Home Office, memorably describing it as “not fit for purpose”.

Great office of state it might be, but this ministry has long been seen as the graveyard of greater and lesser political careers. Of those lesser, it buried one of Gordon Brown’s more bizarre appointees and the first woman to hold the office, Jacqui Smith.

However another woman, Theresa May, could now be gradually revising a role that is supposed to lead to failure and frustration.

One of David Cameron’s strengths as Prime Minister has been his willingness to maintain a stable Cabinet team. For all the angst this can cause lower down the political greasy pole, the undoubted benefit is seen in a maturing grip on their departments by a number of reform-minded ministers. Amid the mire of local elections, polls and poor Budgets, it is easy to forget just how radical this Government actually is.

Education and health are prominent briefs where reform - of the effective, root and branch sort - genuinely is taking hold, thanks largely to their Secretaries of State, Michael Gove and Andrew Lansley.

But it is Theresa May who has been the quiet toughie, and is beginning to show her true quality, tenaciously pressing for reforms on many levels at the catastrophic Home Office.

Granted, it does not always feel like that. The Abu Hamza extradition case looked badly handled; it was followed by one of the frostiest receptions ever afforded a Home Secretary at the Police Federation conference.

Nonetheless, consider this. First, Mrs May acted upon the collective wisdom of the Home Office’s lawyers when pursuing Hamza’s extradition. And whatever ire she felt for it, she calmly took responsibility for the decision, refusing to pass blame, and doggedly continued to pursue the result that most Britons wanted to see. It was a textbook case of ministerial responsibility that has become so sadly rare in recent years.

Second, in facing down the Police Federation, Mrs May was taking on one of the most powerful vested interests in Britain, believing correctly that policing has to change. The Police Federation is a union in all but name and acts in the way that all public services unions act. They seek to preserve inefficient working methods for the good of the lowest calibre of members, rather than seeking to create a bridge between professional delivery and public expectation. The country’s police forces remain highly regarded, but not uniformly so. I joked to one non-political friend that Theresa May had better hope she didn’t suffer a burglary or suchlike, as she might not be able to rely on police support. “Just like the rest of us then,” my friend replied, not entirely cynically.

Theresa May continues to challenge Home Office shibboleths in her demands for changes to judgements on deportation made against foreign criminals living in Britain. The weight of the human legal establishment is set to come down on her, but does anyone seriously doubt either the necessity for such changes, or their popularity?

Theresa May proved that she is a politician with iron in her soul when she challenged the Conservative party, as its chairman, not to relish its role as the ‘nasty party’. She spends her time mastering her brief rather than pursuing it for personal PR - and sometimes this can rebound on her. However, she is a formidable and capable operator, unafraid of challenging vested interests in pursuit of reform.

For all his dislike of unnecessary changes to his Cabinet, Mr Cameron shall soon find himself having to organise a reshuffle. Let us hope it is limited. Whoever is shuffled, the Prime Minister should keep his maturing reformers in place. And no one seems to be earning the right to carry on more than the dogged, flak-carrying Home Secretary.

Follow Giles on Twitter @gilesmarshall