The debate about the Human Rights Act is confused and confusing. ‘So what is to be done? And what is the new Tory government proposing? If only they had the nearest, foggiest clue’ writes Andrew Tickell.
Britain’s human rights debate is a mess. From the new Lord Chancellor’s office to broadcasters’ studios, from human rights defenders to the offices of the most hostile newspaper, the public debate about Human Rights Act abolition is a picture of confusion. Is the HRA written into the devolution settlement? What about Northern Ireland? Can Scotland block repeal? What about our relationship with the Strasbourg Court? Will individuals still be able to send petitions there if Westminster cuts “Labour’s” Human Rights Act out of the statute book?
So let’s get back to basics and try to straighten the damn thing out. If only to save us from the perils of complacency and dangers of false pessimism. In the wake of the Second War, in 1950, the European Convention on Human Rights was signed in an attempt to secure the collective enforcement of some aspects of the Universal Declaration. A right to life, to be free of torture and inhuman and degrading treatment, to liberty, religion and conscience, free expression, fair trials, and the privacy of your home life and correspondence.
To this end, the Convention established a right of individual petition, allowing individuals who believed a Member State had infringed their Convention rights to take their case to Strasbourg. The UK first recognised this remedy in 1965. Since, a diverse array of folk have submitted cases to the European Court. The overwhelming majority failed. They still fail. On average, Britain loses less than 1% of its Strasbourg cases a year. Just a handful. But some triumphed. Litigants like Jeff Dudgeon, who challenged the Northern Irish sodomy laws which saw his life pulled apart by the Royal Ulster constabulary during the 1970s. Dudgeon found no effective remedy in the UK courts. He went to Europe, and won.
In 1997, the Blair government pledged to “bring human rights home”, saving litigants the long and mostly forlorn business of going to Strasbourg. Instead, decisions on human rights would be taken in domestic courts, closer to home. The Human Rights Act was the result. It requires that every public authority in the land – every court, school, hospital, police officer and prison – respect your ECHR rights. In parallel, it also allowed the courts to make “declarations of incompatibility” about Westminster legislation. Parliamentary sovereignty was retained. The courts couldn’t set aside Acts of Parliament. But they could declare that a given law failed to measure up to the standards of the Convention, violating the rights of the individual.
This inspiration to “bring human rights home” also found its way into the Scotland Act. Holyrood doesn’t have the power to amend or repeal the Human Rights Act, but human rights are a devolved matter. Holyrood flexed these muscles to establish the Scottish Human Rights Commission in 2008. But the Scotland Act goes still further. Decisions of the Scottish Government and Acts of the Scottish Parliament must uphold your ECHR rights. Similar provisions are written into the Welsh and Northern Irish statutes.
In contrast with the milquetoast remedies available where Westminster transgresses your rights, the Scotland Act gives courts the power to shoot down laws which are incompatible with fundamental rights. The Human Rights Act isn’t “written into” the Scotland Act. They are two distinct regimes. And both are distinct again from the question of whether individuals can take their cases to the European Court if they find there are no effective domestic remedies. That last line of defence only disappears if the UK government denounce the European Convention and pull the plug on the Court’s jurisdiction. This would have serious implications for the UK’s membership of the other legal Europe — the European Union. But Human Rights Act abolition alone wouldn’t cut us off from the Strasbourg Court.
So what is to be done? And what is the new Tory government proposing? If only they had the nearest, foggiest clue. UK Justice Secretary, Michael Gove, has a competing range of priorities in his big job. To fling red meat to the Tory backbenchers, who are likely to be left frustrated by the gains of David Cameron’s EU renegotiation strategy. To put Labour in an awkward place, ranged against the raging victim fantasists of the tabloid media. To put some flesh on the bare bones of the British Bill of Rights which his predecessor Chris Grayling has abandoned to him. But in the weeks after the election of the Tory majority, it has become painfully clear that the governing party’s thinking about the opportunities and challenges of HRA repeal is both unforgivably shallow and unspeakably arrogant.
They don’t know whether they want to denounce the Convention or not. They haven’t thought through the consequences. They don’t know whether or not they are entitled to repeal the Human Rights Act unilaterally. They don’t know what provisions of the Human Rights Act they particularly object to. They claim that they are concerned about the extent of judicial power, but it is far from obvious how any British Bill is likely significantly to diminish judicial authority. And even better, they don’t even know what they want to put in a British Bill of Rights. Perhaps a crumb of Magna Carta. A bit about juries. It is an exercise in truthiness. In policy-making from the gut. In vague aspirations and acute delusions of victimisation. Pity Poor Gove. He’s baking bricks without straw here.
But the new Lord Chancellor’s biggest problem? Devolution. Despite David Mundell’s zombie assumptions, we don’t live in a unitary state. Which brings us to the Sewel convention and opportunities for resistance. This convention says that Westminster will not legislate for devolved matters without Holyrood’s consent. Legally, it can. But constitutionally, it shouldn’t and won’t. The UK government want to codify Sewel in the new Scotland Bill, to reflect Mr Cameron’s “respect” agenda and to strengthen the Scottish Parliament’s constitutional hand. If Holyrood wants Scots courts, Scots schools and Scots hospitals to be subject to these individual rights – Westminster arguably has no right to disapply them. If Holyrood wants the Scotland Act to retain its ECHR provisions, the Tory majority has no right to strip out those protections.
It’s debateable whether repealing the Human Rights Act requires consent. I would argue that it does and should, representing a significant rejigging of Holyrood’s founding statute and its powers. But what is not debateable is that introducing any new British Bill of Rights will transgress into devolved responsibilities, and have to secure the assent of the Holyrood majority. On the current evidence, that consent would not be forthcoming.
But remember, the HRA goes much further than the Scotland Act, binding British public authorities operating in Scotland, but which do not fall within Holyrood’s responsibilities: immigration and asylum decision-making, the practical delivery of the universal credit. In the media commentary, there is a rising England vs Scotland vibe. Politically, this makes for fun and games, but substantively, it is unhelpful and misleading.
The Independent speculated last week that Gove might leave the HRA intact north of the border, adopting an English Bill of Rights instead. But this discourse is a false friend. On these reserved questions and institutions, there is little Holyrood can do to stop Tory ministers from liberating these public authorities to ignore your Convention rights.
Distracted by the “dignified” aspects of the British constitution, the new government has clearly given less thought to how to give practical effect to their repeal plans. We’ve stolen a march on them. But make no mistake: this fight is doomed to be as messy and convoluted as the law itself.
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