Although Tory hostility to human rights law is obvious, there’s been vagueness till now about what actual policy a Conservative government would pursue. For a long time the plan was to draft a ‘British Bill of Rights’ the content of which was unclear – and the idea hasn’t gone away.
There’s been talk of ‘making the Supreme Court supreme’; the Home Secretary Theresa May has promised to repeal the Human Rights Act and the Justice Secretary Chris Grayling has apparently been working on some sort of blueprint, though it’s not seen day yet. The former Attorney General Dominic Grieve fears a plan to make adverse rulings by the European Court of Human Rights somehow subject to approval by Parliament.
But this morning (30 September) May and Grayling will speak at the Conservative conference in Birmingham, and the time for fuzziness will be over. Surely by lunchtime, the plan and the policy must be clear. What might it be?
The objective, and the current approach
First let’s consider their objective. It must be to prevent future rows like those about prisoners’ votes and the deportation of Abu Qatada, and to make the European Convention on Human Rights a more congenial system for British governments in future. For partisan reasons, they’d also like to make it clear to the public that it’s the Conservatives ‘what done’ that.
There’s an existing strategy of course: one of diplomatic and legal attrition (or ‘dialogue’) in which ministers try to influence the European Court of Human Rights to go easier, and British judges to be less deferential to the Strasbourg court. It’s fair to associate this approach with Dominic Grieve, but it may also owe something to William Hague; the importance in this policy area of the Foreign Office, which is responsible for international treaty obligations and for global human rights policy, is often overlooked, and his recent removal may be as significant as Grieve’s.
The strategy’s working. The most recent Strasbourg judgment on prison votes (in which the European court decided not to award compensation or costs to prisoners denied the vote) effectively signals that the court has given in, for fear that upping the ante on the UK would simply flood it with ever more applications from British prisoners. That’s a fear that’s been more useful from the UK viewpoint than is often appreciated. In my view, the next government should continue this strategy, which is by far the best in the UK’s interests. It’s likely to succeed without disrupting the Union, emboldening British judges or damaging our foreign policy promotion of human rights standards.
But my approach would mean no party would get electoral credit when, in five or ten years, people realise human rights questions seem less controversial, less often than they once did. Conservatives have an incentive to put a more garish policy up in lights to try to get the better of both UKIP and Labour.
The options
There are several possible options: (1) repealing the Human Rights Act; (2) amending the Act (or repackaging it with changes as a British Bill of Rights) to change the relationship in domestic UK law between the Strasbourg court, our own courts and Parliament; (3) leaving (or in interventional law jargon ‘denouncing’) the European Convention on Human Rights temporarily in an attempt to alter the same relationships in international law; and (4) leaving the Convention altogether. The final option would raise an easy cheer in UKIP strongholds but would surely be the last resort, even for today’s Conservatives.
Here’s why I think they’re likely to announce what I’ve called Option 2. The really aggressive (but almost certainly doomed) policy would be to combine Option 2 with Option 3 added not as a threat, but as a promise. In any case I imagine they’ll threaten Option 3 or 4, the UKIP option, “if need be”.
Repeal
Simply repealing or “scrapping” the Human Rights Act would take the UK back to where it was in 1999. It may sound like slaying the beast to many Conservatives who don’t know what the Act does or says.
Yes, repeal would mean government action could not be stopped by British courts on human rights laws grounds, at least not under the European Convention. But it would fail to achieve the main objective, because neither the Abu Qatada case nor the prisoners votes controversy were caused by the Human Rights Act. Domestic courts left to themselves would have allowed the Jordanian’s deportation much earlier, and the Human Rights Act denies prisoners the vote, a point which is often (somewhat mystifyingly) overlooked. Repealing the Human Rights Act would not alter this country’s relationship with the European court.
The problems repeal would cause are also worth considering. Repeal would have a differential effect in England from in the devolved nations, whose legislatures are anyway bound to respect European human rights standards. Unless the government wanted to free then from those shackles, English judges in Westminster would still decide human rights questions against devolved administrations. Only those who’ve already forgotten their concern about the Union could ‘chillax’ about the Scottish view of this. Would English local councils, for example, be given more freedom in this key respect than the Scottish Parliament? That would be the effect of a simple repeal.
Second, repealing the Act would have an unpredictable effect on judges. Rightly or wrongly there is a ‘politics of the judiciary’, and most lawyers and judges in 2014 subscribe to a vaguely liberal view in which human rights must be promoted and enforced somehow. They’ve even been encouraged by politicians to develop their own human rights thinking in recent years, and to dissent from Strasbourg. The trouble is, given their own head they could become more demanding than Strasbourg, not less. We could easily see judges incorporating tough human rights requirements into our common law, loosed from European or statutory moorings. That sort of future could be more constraining for British politicians. They must be careful what they wish for.
So if I were Grayling or May, ‘scrapping the Human Rights Act’ would not be my policy, unless what I really meant was cosmetic replacement of it with something fairly similar, along the lines of the amendments I’ll turn to now.
Amendment
A more serious policy would be amendment (which could be could presented as ‘scrapping’ the Act and enacting something similar under the label of a ‘British Bill of Rights’). Amendment would have two objectives. First, to ‘make the Supreme Court supreme’. Second, to prevent any change to legislation for human rights reasons being made without Parliament’s approval.
Making the Supreme Court supreme
They could ‘make the Supreme Court supreme’ by amending section 2 of the Act, which says domestic courts must take account of Strasbourg rulings. Section 2 doesn’t require our courts to follow Strasbourg: everyone agrees with that. The change they’d want to make would be quite a limited one, to stop the Supreme Court feeling in some cases that it must defer to ‘clear and constant line of decisions’ from Strasbourg. An example of where this has happened is (yet again) prisoners’ votes, on which our highest judges initially agreed with the British government but because in the meantime there’d been a ‘clear and constant line of decisions’, declined to say Strasbourg was wrong in the Chester case last year.
The answer would be to make clear that a UK court should only determine a human rights issue in accordance with a Strasbourg ruling if it agrees with that ruling. The intention would be to stop judges from ever applying Strasbourg rulings, no matter how often or how powerfully insisted on by the European court, in preference to their own legal views.
The Conservatives could also limit the section 3 power (duty, in fact) that judges have to strain the interpretation of legislation to meet human rights concerns. The intention would be to ensure they could not depart from Parliament’s original intention and thereby amend laws ‘by the back door’. That’d have a political downside, though, as it would mean the courts would more often have to declare legislation incompatible with human rights (which is often the alternative to a strained interpretation) – and so human rights would be in the news a bit more often. I doubt they’ll touch this, unless they promise to do away with declarations of incompatibility as well.
Parliamentary override
The Parliamentary override issue is, in one way, quite simple. As things stand already, no amendment can be made to legislation without Parliament’s agreement one way or another. But one way of seeming to boost Parliament’s role would be to abolish remedial orders under section 10 of the Act, so that any change to primary legislation not within the scope of an existing delegated power would have to be made by introducing a bill. Not actually a very radical change, that.
There would, though, be a political case for inserting in legislation a declaratory statement of Parliament’s centrality – and a legal case, if the Tories want to combine options 2 and 3. They might want also to remove the possibility of ministers using any delegated powers at all to give effect to human rights judgments. So a section could be inserted into the Human Rights Act saying no legislative change may be made to remove incompatibility with any of the Convention rights, except by act of Parliament (or by equivalent acts of the devolved legislatures).
These amendments would do something to make our domestic human rights scheme more Strasbourg-proof than it is already, without letting our own judges off the leash. But their effect would be less radical than it might seem. They would do nothing to stop a repeat of the Abu Qatada and prison votes problems. To win politically on those, the Tories will need to succeed by the current attrition strategy, and perhaps pretend it’s these amendments that do the trick.
If they feel even that’s not enough, they’ll need to try changing our relationship with the ECHR and the Strasbourg court on the international law level, which we’ll look at next. This would really be ‘courageous’ in the Whitehall sense.
‘Denounce and reserve’
Temporary denunciation of the Convention has crossed ministerial minds in the past, and it might occur to them to leave the ECHR and try to rejoin making a reservation under article 57 that mirrors the domestic changes I’ve mentioned above and makes brief reference to them (which is where the legislative declaration would help). A reservation is a way for a state to qualify the international law obligations it accepts under the ECHR – adding riders and provisos, in other words. This can only be done on signature or ratification of the Convention, which is why the UK would need to leave first, having already ratified the Convention back in 1951. Many states have entered reservations, mainly to give themselves extra latitude on limited and specific issues such as the detention of soldiers under military discipline laws.
The reservation would be against article 46 and perhaps article 13 of the Convention, saying the UK will give effect to Strasbourg judgments subject to the principles that any ruling against the UK will have binding effect only if the UK Supreme Court agrees (this is the really cheeky one, and perhaps dispensable), and that Parliament’s approval is needed for any change to legislation (cheeky, but a little less so; and essential). The intention would be unilaterally to impose those principles on the other signatory states. If it succeeded, the UK would end up being a little less bound by the Convention than they are.
That wouldn’t be the end of the matter, though. Far from it. As Richard A, Edwards has explained, the ECHR has power to rule that a reservation is ‘of a general character’ or contrary to the object and purpose of the Convention, and so invalid. It has done this in previous cases and the UK wheeze would blow a massive hole in the Convention enforcement mechanism. So the court would be bound to review it, and would probably strike it down. At that point, the UK would have to choose definitively between simply returning to legal and diplomatic attrition, or leaving the Convention for good. Of course it might take a few years to get to that, which may be a long enough delay to satisfy today’s politicians.
What we’ll hear today
Unless they’re prepared to leave the Convention altogether, then, the Tories’ options are more limited than they’d like. I doubt they’ll repeal the Human Rights Act: in a sense that’d be the least daring option, but it would carry unique risks of its own, particularly from Scotland and the judges.
They can ‘make the Supreme court supreme’ and give MPs more visible control over legislative changes following human rights judgments. Neither would solve the Abu Qatada or prison votes problems but I expect them to announce both, and to threaten leaving the Convention as a backstop either temporarily (Option 3) or for good (Option 4).
What’ll be really interesting is if they’re determined to go beyond tinkering with the Human Rights Act, and promise to impose their Option 2 domestic changes on Strasbourg by my Option 3 – the “denounce and reserve” approach. That would in a sense be magnifique from a Eurosceptic viewpoint, but would almost certainly be a Light Brigade moment.
Postscript
It’s worth remembering that none of this – even total denunciation – would at all affect the continuing UK effect of human rights as part of EU law. So long as we remain in the EU, fundamental rights as laid down in the EU Charter (which basically replicates the ECHR) must be enforced by our own judges in any EU law dispute, about discrimination at work, say, or free movement of an EU citizen or his or her spouse.
Of course if there’s a Conservative majority next year, that fairly big loose end might only last till 2019.
Barrister and former government lawyer Carl Gardner blogs at Head of Legal. Click here to follow Carl on Twitter.
