The state of human rights (4)
Date: 12 August 2011
Authors: Roger Smith
Issue: Vol 161, Issue 7478
Categories: Opinion, Human rights
Let us consider the alternatives for the future of the Human Rights Act (HRA 1998) in this final article in the series. Opponents of HRA 1998 say that it shackles Parliament, setting constitutional standards on government based on universal, not national, values and dependent on judicial interpretation. The Act’s defenders say that it shackles Parliament, setting constitutional standards etc. So, although they don’t always like to say so, both sides broadly agree on its effect: they disagree on its desirability. So, what is to be done?
Culture shock
Culturally, the British are deeply prejudiced against threats to the supremacy of Parliament. After all, our ancestors fought for centuries against the divine right of kings, the feudal rights of landed interests and the overbearing rights of men. As a consequence, the British value Parliament. That is why the proven venality of MPs has been so shocking. Someone from almost any other country would be baffled, however, by our collective unease about written constitutions. Americans, for example, absorb the principles of the Bill of Rights with their mother’s milk—be they Tea Party activists or Democrat Liberals. The Germans, the French, and the rest of Europe would find the lack of a written constitution and guarantees for basic or human rights unimaginable.
Effects of repeal
The problem for those in the UK who want to argue for the simple repeal of HRA 1998 is that the Act is unique. Behind it stands the European Convention on Human Rights to which the UK has acceded and would, in any event, remain bound. So, do what you like with HRA 1998, you still face the European Court of Human Rights (ECtHR) telling you to give votes to, at least some, prisoners. And you also still face a treaty commitment by the UK government to abide by such a judgment.
For an opponent of HRA 1998, the most logical position is to go for both repeal of the Act and withdrawal from the Convention. This is legally quite possible. As a bonus for a likely advocate of such a position, departure from the Convention would probably require saying goodbye to the EU as well. However, the political and economic ramifications of such a step restrain even the most virulent critics. David Cameron has, for example, always argued that the UK must stay within the Convention as a matter of practical politics.
De facto repudiation
Some argue that we could stay nominally subject to the Convention but de facto repudiate acceptance of decisions of the court. Legally and politically, this is pie in the sky. It is, however, a position advanced by the Tory-leaning Policy Exchange and young Tory Turks like Dominic Raab MP. He argued in his book, The Assault on Liberty (2009), that the UK might just ignore the court and no other country would dare do anything about it. This is more mischievous than practical: the Eurosceptic backwoods come alive with roars of approval at the idea’s low cunning. Indeed, such a move might go down well in the newer democracies of Europe’s periphery, like serial offenders against the Convention—Turkey and Russia. From Berlin and Paris, it would be seen as little short of treason. It is hard to see, therefore, much value to the UK abroad from such a move. Traditionally, the UK likes to be associated with the rule of law. This is, after all, a morally righteous approach with potential economic benefits for a country with large international investment.
Watering down
You could try to water down the domestic effect of the Convention by repealing or amending the provisions of HRA 1998 that incorporated the Convention within domestic law. So, for example, domestic courts must assume that any clear decision of the UK Parliament was made in the exercise of a justified margin of appreciation. It would be for the ECtHR to say otherwise, not the UK Supreme Court. This is the sort of package on which Dominic Grieve QC, now attorney general, appeared to be working before the election. It may be the suggestion of the ongoing Conservative Party Human Rights Commission, chaired by Robert Buckland MP. However, in the end, the ECtHR could torpedo such a position just as it has done in the case of prisoners’ votes. So, this expression of nationalism carries the danger of being revealed, in the longer term, as rather more spin than substance. We might predict that it will float to the surface at the next election though it is likely to be quietly dropped thereafter: it is too obvious a subterfuge.
Best we can get?
That leaves two sensible approaches. Both depend on the assumption that it would be logically best to ally domestic and European law. You either enact the Convention directly into domestic law through a Bill of Rights that gives, as a minimum, the same rights as in the Convention. Alternatively, you accept the status quo. Once people have lived in closer proximity to the Convention, they will lose their fear of it. People may even come to welcome the value of restricting Parliament’s power. The problem of any domestic rewriting will be what gets lost in translation. The prospects for confusion and obfuscation, deliberate or unintended, are too great. I would hold the hand of nurse for fear of something worse. Nothing wrong with discussing a UK Bill of Rights but, divided as opinion is at the moment, the current legislative situation is the best we can realistically get.
Roger Smith is director of Justice. Website: www.justice.org.uk
This is Roger’s fourth article in the series on the Human Rights Act (See The state of human rights; The state of human rights (2); The state of human rights (3))
Share this page
