Human Rights Act 1, Scene 3

2013-11-02_ideasfestival_jaynephoto8The 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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Comments (24)

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  1. dunderheid says:

    A very clear and concise summary of the issues even if I disagree with some of the emphasis….thanks.

    I’m pretty sure the Conservative leadership included this in their manifesto as coalition negotiation fodder and are now scrambling to deal with the consequences of an ill-thought through commitment. However much of the motivation I feel comes from sovereignty issues and not the actual rights enshrined in ECHR or HRA. In other words the idea that British and/or Scottish human rights should ultimately be decided by British/Scottish judges and not European ones. Now you can debate the benefits of European integration endlessly but what I think is less debatable is that countries such as USA, Canada, Australia, New Zealand, Japan manage to protect their citizens human rights adequately without the ECHR. I’m sure if required the UK and Scotland could do the same

    1. Gordon says:

      US. Human rights?. I say 2 things to you dunderhead: Guantanamo Bay and the execution of innocents.

      1. dunderheid says:

        Would you rather live in Russia or Turkey (both signatories to ECHR) or USA?

        1. ColinD says:

          Ah, the old ‘would you rather be knocked down by a bus, a car or a motorbike’ argument.

        2. Alex Birnie says:

          Since I’m white and reasonably well off, I’d rather live in the USA than Turkey or Russia. However, if I were a jobless black man, then it is a much more difficult decision, but I’d probably go for Russia or Turkey, because at least there is a possibility of justice in the European court, whereas in the US….t’ain’t gonna happen.

          1. Alex Birnie says:

            I omitted to say that if I were a black man accused of a capital crime, then defo Russia or Turkey!!

          2. dunderheid says:

            Here are some jobless black peoples views of Russia….

            http://www.latimes.com/world/africa/la-fg-russia-africans-20141102-story.html#page=1

            oh and they love gay people too…

            http://www.pinknews.co.uk/2014/02/07/the-25-most-shocking-anti-gay-stories-from-russia-so-far/

            But you know they have ECHR so everything will be all right….

    2. Beor says:

      The big difference between the UK and all the countries you list is that those countries all have written constitutions with inbuilt protection. The notion if parliamentary sovereignty in the UK gives parliament carte blanche to ride roughshod over citizen’s rights with no judicial remedy. In view of the proposals collectively known as the “Snooper’s charter” presented again by Theresa May this is not just a theoretical danger.

      1. dunderheid says:

        New Zealand has no written constitution as such, and the Canadian constitution is enshrined in Acts of (Canadian) Parliament which theoretically could be over-ruled and set aside by a subsequent parliament. The others I mentioned do obviously have written supra-legal constitutions but which have needed regular amendments to keep pace with changing values (eg slavery, aboriginal rights, LBGT rights etc). Also many other countries have written constitutions that on paper are rigorous in their protection of human rights and yet are in practice worthless
        My point is a states commitment to human rights is only as strong as the commitment of its citizens to those rights…a written constitution or lack thereof is no guarantee of of a just and equitable state or the reverse.

        1. Muscleguy says:

          NZ does have a sort of constitution, it has a Bill of Rights which sets out things like how parliament is structured and what powers officeholders have and what the constitutional order is etc. There is also the Treaty of Waitangi which is written into the law and pertains to the constitutional rights of Maori and gives them legal routes to redress.

          1. Beor says:

            Was going to reply along the lines of Muscleguy (wy wife being a Kiwi) – but Muscleguy got there before me.

            (Hi Muscleguy!)

          2. dunderheid says:

            New Zealand has a written constitution as much as one can say UK has a written constitution…in other words various documents and conventions established by courts and parliamentary custom that govern the rights and responsibilities of its citizens. All of which is subject to the principle of parliamentary supremacy in which no enacted law can prevent a future parliament from changing that law

            http://www.teara.govt.nz/en/constitution

  2. George Gunn says:

    David Cameron is trying to throw red meat to the far right of his party and to appear “popular” and “reasonable” at the same time and not make a complete cack of his so-called reforms with the EU, immigration etc – and the small business of Scotland drifting out of his beloved Union. Whatever happens it will, as Andrew has indicated, be a dogs dinner. The job of the 56 in Westminster is to expose this coming farce every step of the way. One thing the Tories have form on is that whatever piece of legislation they put in place it is generally far worse than what was already there. They also have to keep the City sweet at every turn hence the planned RBS sell off.

  3. Kenneth Coutts says:

    Looking at human rights, first check out the Chagossian islanders and the over ruling by the royal perogative on an english supreme court Judge ruling, that the Chagossian islanders should be repatriated.
    The royal perogative acted upon by the brother of the leader of the defunct labour party, preventing the chagossians returning to there homeland.
    British human rights is a sham, when it comes to the english state.

  4. HerewardAwake! says:

    You cannot throw together a Bill of Rights in five minutes just to suit the extreme views of sections of the government who happen to be in power at the moment. We are all paying dearly for the shambles, yes, shambles that has been passed off as the so-called British Constitution for decades and more. The ramshackle collection of common law, statute, tradition, ritual and cross-dressing that is our constitutional monarchy is little more than a ludicrous and expensive comic opera which enables the establishment to do what it likes behind the myth of democracy. But a properly drafted constitution will take time to construct, debate and put to the public by referendum. Gove and the Tories are just looking for a quick and convenient fix to satisfy their own lust for power and that will not do whatever the cut of your cloth. That is the challenge facing us all.

  5. Drew Campbell says:

    Succinct, clear-headed article, Andrew. Much needed and much appreciated, so thanks to you and Bella.

    It is indeed going to get messy. The good news is we have fairly robust institutions through which to channel our resistance and, tabloid onslaught notwithstanding, a real opportunity to focus the public mind on some fundamental issues – the lack of written constitution, where sovereignty lies, why basic human rights are so inimical to vested interests, the relationship between the people and state power.

    So messy, yes, but also – if you’ll forgive my paraphrasing of Alex Salmond – redolent with possibilities.

  6. Jones says:

    The issue of the EHCR is substantive. What the actual law contains and the unintended consequences of these laws. For example, the ‘cold case’ sentencing of two of the Steven Lawrence murderers as juvenilles rather than adults due to (art 7) sticks in the throat. Legislation not in force at the time of the crime should not be applied if the case is reopened at a later date.

    But the fundamental principle overrides these and other case specific considerations IMO (law at EHCR can be changed and modified and needs to be) But the founding ‘principle’ being the right of the individual to have access to higher court beyond the State, as a fundamental way to protect essential liberties from state encroachment, needs to be protected at all costs.

    Unfortunately the authoritarian tendencies of the SNP are just as confused as the Tories. (who at least have a back bench full of David Davis’ and Libertarians.

    Alex Salmond in 2010…..

    ‘I know that the Liberals are understandably keen on the European Court of Human Rights and the European Convention on Human Rights. However, I cannot believe that, back in 1997 when there was blanket signing up to the ECHR, those of us who argued very strongly that human rights should be observed across the European continent thought that one of the key issues would be to give convicted prisoners the right to vote. For most people, that does not seem to be what we would consider to be an important human right.’

    Alex Salmond, ‘the First Minister of Scotland and champion of supranational legality (when it suits)’, misunderstood that the ECHR dated from the war and came as a response to the Holocaust and not from the introduction of ECHR into UK law by the HRA by Labour in 1997!

    The SNP ignored the EHCR for the Referendum (no prisoner votes including juvenile custodial sentences/ the autonomous granting of votes to 16 and 17 year old’s conversely), which of course, the SNP now claims is wrong (Alex Salmond completely switching when it suits his narrow unprincipled politics), and that the EHCR rulings, including on prisoner votes ought to be respected, UK wide.

    And worse, when it comes to the UK Supreme Court rulings (many of whom’s decisions are underpinned by the HRAct and thus ECHR, that conflict with Scots Law (or the nationalist whims of SNP politicians), the SNP use exactly the same rationale as the Tories; that UK supreme court has no understanding of the values and principles underlying Scots Law. Kenny Mac. sought to withhold Scotland’s 500 000 funding share, before being slapped down for Politicising what ought to be an independent judiciary.

    The SNP contention (that there is no understanding or legitimacy of the UK supreme court, over Scots law) of course is utter inconsistent nonsense, moreover simply not true as a standing convention of the Supreme court is that it must have at least 2 sitting Scots judges at all times for the purpose of ‘Scots law’….The EHCR on the other hand has none what so ever.

    And add to the confusion of the SNP line on the House of Lords, who are most likely to vote against any repeal of the HRA and a withdrawal of the ECHR…(but this is a perhaps a different issue.)

    So all SNP supporter bleating on about the ‘dangers’ of authoritarian government and the damaging repeal of ECHR, need to keep a very close eye on their own party who has bad form on external jurisdictions over the national. The protection of individual liberties should not be a political tool to instigate constitutional crisis after constitutional crisis, which is the main motivation of the SNP. How does it serve the ‘universal human rights’ of Scots to behave like this?

    Of all the good reasons to vote No to independence, the protection of supra-national/ multi-judicial autonomy (that actually works – the backlog in the ECHR is over 5 years, where as the same process can be done at the UK Supreme Court under the HRA is much faster) for the individual this was it.

    1. Jones says:

      “We support the human rights act because we like people being able to sue governments against things like the ‘bedroom tax’, and have basic human rights we should not be frightened of. So I don’t think the Scottish parliament, under the Scottish National Party, has any chance whatsoever of giving legislative consent to such an insane proposal.”

      Alex Salmond 2015

      “I don’t think it’s sensible, fair or reasonable in any jurisdiction where we’ve a situation where one judge is overruling the opinion of many judges in another court,”

      Alex Salmond 2010

      “The political consequences of Lord Hope’s judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don’t go chapping at Lord Hope’s door,”

      Alex Salmond 2010 (Could have been a Daily Mail leader)

    2. Jones says:

      “We support the human rights act because we like people being able to sue governments against things like the ‘bedroom tax’, and have basic human rights we should not be frightened of. So I don’t think the Scottish parliament, under the Scottish National Party, has any chance whatsoever of giving legislative consent to such an insane proposal.”

      Alex Salmond 2015

      “I don’t think it’s sensible, fair or reasonable in any jurisdiction where we’ve a situation where one judge is overruling the opinion of many judges in another court,”

      Alex Salmond 2010

      “The political consequences of Lord Hope’s judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don’t go chapping at Lord Hope’s door,”

      Alex Salmond 2010

  7. leginge says:

    Jones
    For all your academic intellectual lawyer-speak you throw in “Alex Salmond unprincipled” FFS! – is that really what your piece was all about ? Of all politicians of the last 40 years Alex Salmond has gotti be the most principled of all, hence Scotland may soon be free from the utterly unprincipled british establishment.

    1. Jones says:

      It was the unprincipled British Establishment who disproportionately helped to create the CofE and ECHR in the first place after the Nuremberg trials.

  8. Jones says:

    I think principled generally means acting in accordance with strongly defined notions of right or wrong, acting with respect to means not ends. Alex Salmond (in this case on the ECHR and often in general) does the opposite. He is only interested in the End, winning politically, and ultimately independence. To be principled you have to be consistent in your approach to what you consider right or wrong, over and above other considerations. In this case ‘individual liberty over and above the state’. Those such as Dominc Grieve, David Davis, Tories who are prepared to challenge and rebel against their party in order to maintain and defend a wider principle, irrespective of any other consideration.

    Labour MP’s, Lib Dems, the Greens, all attended the HRA debates and vote in 1997, where as Alex Salmond didn’t show any interest, yet now because it is politically expedient for other ends (to highlight rather false constitutional/ policy differences between Scotland and the UK (England) he is suddenly very vocal. Similarly, previously he and the SNP have been implacably opposed to the UK supreme court having jurisdiction over Scotland (despite the Supreme Court adopting through the HRA, the law of the ECHR). This inconsistency implies that Alex Salmond is not motivated by the ‘principle of Liberty’ but by political gain and in using the principle for other ends.

  9. Jones says:

    https://www.supremecourt.uk/docs/jurisdiction-of-the-supreme-court-in-scottish-appeals.pdf

    Explains the role of the UK supreme court and the relationship to human rights and ECHR/ HRA.

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