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

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.”