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

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

PMQ’s review: What Head Master Bercow wrote to Mrs Miliband

Jack Blackburn 2.20pm

Dear Mrs Miliband,

I am writing to you as I am concerned about your son Edward’s performance at school. As you know, we were delighted that Edward was elected Head of House, although it was a shame that electoral irregularities meant that he was in fact elected predominately by pupils from another house entirely.

However, since then the manner in which he has been performing at JCR meetings has been somewhat distressing. He has a very combative relationship with the Head of School, David Cameron-Flashman, and it is not always serving him well. We encourage vigorous debate in the school, although we do think that the senior school should model themselves on the more placid and nervous junior school. Consequently, Edward’s performance has not been up to the standard that we would wish, or what we think he would expect from himself.

The issue was brought into sharp focus at the JCR meeting this lunchtime. The Head of School had endured an embarrassing week, when it turned out that one of his prefects had failed to monitor the signing of gating cards properly. Edward had legitimate concerns about this, but his preparation for the questioning seemed to be have been very scant and poorly thought-out. I would describe it as blasé, but that would imply a level of style which, I’m afraid to say, Edward lacks.

He did not ask Master Cameron-Flashman about the ongoing Schools’ Congress meetings and the financial issues which are currently engulfing the desks of JCR Treasurers all over the place, choosing to devote the entirety of his allocation of questions to this issue of gating cards. Edward did not engage with the Head of School who, to his credit, was on top of the situation and gave a decent account of what had happened, and pointed to the fact that the new approach to gating, which led to this problem, had of late caused an increase in the number of detentions handed out and the amount of contraband confiscated.

Edward simply had not prepared himself properly. He knew that there could be a problem for his opponent in this story, but did not really have any grasp as to what that problem was. He ended up as something of a babbling wreck, I’m afraid to say, claiming that the Head of School does not take responsibility before quoting the Head of School saying that he took responsibility. Furthermore, while I applaud the breadth of Edward’s vocabulary, I suggest that he look up the word “fiasco” to get a grip on what it actually means and also that he use it a little less.

I bring this to your attention because I feel that Edward is letting himself down and I would implore you to help him take more care over his preparation. I had intended to ask his brother to help him with this, but he has been strangely absent of late. Could you shed some light on his whereabouts? Many of his housemates miss him very much.

I also fear that Edward may feel hounded by Master Cameron-Flashman’s somewhat brash and offhand manner. Evidently we have a very strong anti-bullying policy at the school and I intervene as often as possible but, while this is not a problem in the exemplary junior school, I think Edward may have to accept that the more senior boys shall not tolerate this type of woeful performance for long.

All the very best wishes from Sally and me, and we look forward to seeing you at the memorial service on Sunday.

Yours sincerely,

Mr Bercow, Head Master

Follow Jack on Twitter @BlackburnJA

Theresa May’s shrill and misleading attack on the Human Rights Act

Daniel Cowdrill 6.10am

As Sir John Major pointed out on the Andrew Marr Show on Sunday, the European Union has to change. There is a need for greater fiscal union, and this invokes important questions about our own future in Britain.

However, the debate over our relationship with the rest of the EU must not be conflated with the debate over human rights. The European Convention on Human Rights (ECHR) is a separate treaty enforced by a separate institution.

In May 1949, Britain became a founding signatory of the Treaty of London, which established the Council of Europe. Membership is open to all European nations that are committed to fundamental rights and freedoms enshrined in the Convention articles. The Council of Europe is an achievement that Britain should be proud of.

Sixty years on, it is disappointing to hear a Conservative Home Secretary demand that the Human Rights Act “must go”, as Theresa May has done. The Act gives a legal basis to the Convention within the UK. When put on the stop, David Cameorn has supported Mrs May, reaffirming the Conservative party’s manifesto commitment to repeal the Act and replace it with a British Bill of Rights.

This is the kind of populist pledge that parties are prone to make in opposition. It is not something for responsible governments. One suspects that despite the Prime Minister’s support for his Home Secretary’s comments, ultimately he is not prepared to repeal the Human Rights Act.

Mr Cameron, conveniently enough, blames the Lib Dems for making him go slowly on the issue. The truth is that any replacement of the Human Rights Act would be along broadly similar lines and likely to allow for the same judgements that so offend the likes of the Daily Mail. It is a waste of government time and effort and certainly not worth the internal coalition fight it would create.

Certainly, there has been what one might call ‘human rights inflation’ since the Convention articles were introduced into domestic law but scrapping the Act entirely would be throwing the baby out with the bathwater. It is the judiciary’s interpretation of those rights - sometimes going far beyond the rulings passed down from Strasbourg - that is at fault.

The main example of this ‘inflation’ is the extension of deportation restrictions on the grounds of the Article 8 ‘right to family life’. These judgements are the product of English courts. They are not stipulated by European courts. The only restriction that Strasbourg case law places on the deportation of foreign criminals is on the grounds of the Article 3 right to freedom from torture.

The Home Secretary is tasked with the maintenance of public safety. However, she would be better advised to aim her fire at the judiciary, who have perhaps been to deferent to their own assumptions about how Strasbour would rule on the same case.

A good argument can be made that the judiciary has failed to use the margin of appreciation permitted under the Convention to apply human rights with the correct sense of proportion.

Instead, the Home Secretary has opted for a shrill and misleading attack on the Human Rights Act itself, so sweeping over all the good work done in resolving miscarriages of justice.

This wrong-headed assault on the Human Rights Act is an unfortunate hangover from opposition politics and the Government should take the first possible opportunity to abandon it.

Follow Daniel on Twitter @danielcowdrill

Grieve digs claws into May in catty row over Human Rights Act

Nik Darlington 7.24pm

The TRG, by its own admission, did not expect their fringe debate on the Human Rights Act to be a big draw.

Much fun was had at the Home Secretary’s expense and cat jokes came thick and fast. Attorney General Dominic Grieve, who is in favour of a British Bill of Rights, said, “We need to have a rational debate. We must be more productive than just going for the ‘meow’ factor.” Grieve indeed has a cat and a happy family life, we discovered.

Grieve went on: “The judicial interpretation and case workload of the European Court ought to be a concern for the UK and other European countries.” “If Britain wants a Bill of Rights we can have one, but we have to accept that the Coalition circumscribes what we can do.”

Eleanor Laing, the MP for Epping Forest chairing the debate, said “in contrast to all the cat talk, I’m delighted that we can discuss this in a constructive way.”

Cutting business red tape: perhaps don’t ask, just do it

Nik Darlington 12.50pm

Last Thursday, TRG vice president and MP for Battersea, Jane Ellison, asked Theresa May, Home Secretary and Minister for Women about support for women wishing to start new businesses.

The Home Secretary said that the Government is “committed to increasing the number of women and men setting up businesses”. Mrs May is correct to emphasise that help is offered to men as well as women, however it is risky to make a commitment that the Government has no power to deliver. Fundamentally, it is up to men and women to decide when and why they embark on a business venture.

What the Government can do is dismantle the labarynthine regulations presently inhibiting men and women from setting up businesses. Jane Ellison followed up her question by saying:

“A constituent of mine has told me that she has built up a successful small business, working round her caring responsibilities over a number of years, but that she found the step to taking on an employee very daunting, given the complexity of regulation and legislation involved.”

The Global Entrepreneurship and Development Index (GEDI) assesses entrepreneurial activitiy and prevalence of start-ups across a global sample of seventy-one countries. The UK sits in 14th position, ahead of other major EU economies such as Germany (16th), France (18th), Italy (27th) and Spain (28th), but behind Scandinavian countries such as Denmark (1st), Sweden (4th), Norway (8th) and Finland (13th). Canada (2nd), the USA (3rd), New Zealand (5th) and Ireland (6th) also rank more highly. The producers of the index believe that a reason for the relatively poor economic perfomance by the big EU economies is because of their low levels of entrepreneurship.

A separate report by the World Bank, Doing Business in 2005, found that the payoffs for reform of red tape are great and that heavy business regulation excludes the poor, and especially women and young people, from setting up businesses.

Cutting red tape is crucial if we are to encourage more entrepreneurial activity, which in turn creates jobs and contributes to economic growth. Whether this is done by women or men should not be the most pressing concern as long as regulations are designed not to discourage either sex - the Equality Act 2010 makes this a legal requirement and Mrs May indicated her support for it. There are many more important social and economic reasons why less women set up businesses than men, for instance access to affordable childcare or just antediluvian social prejudice.

Theresa May plugged the Government’s new red tape website. It is a worthy initiative but is it not a concern that if people like Jane Ellison’s Battersea constituent have barely enough time to run their own business, filling in more forms on a website might be too much to ask?

These sorts of consultations are all well and good but there comes a point when the Government should just bite the bullet and take an axe to our vast forests of legislation, lest the consultation processes become red tape themselves.

Share this article on Twitter