Human Rights Act: Why the Conservatives are wrong

The publication last week of the Conservative Party’s proposals for changing Britain’s human rights laws, euphemistically entitled “Protecting Human Rights in the UK”, has attracted support from those sections of the press and Party fixated on the view that we are constrained by our adherence to the European Court of Human Rights, and our incorporation of it into our own law.

As a Conservative, proud of our country’s record on human rights, I believe this view is misplaced. These proposals threaten to create domestic constitutional difficulties and to undermine our international reputation and influence for entirely illusory benefits.

The ECHR was established by the European Convention of Human Rights in 1959. Although described as “rights,” the Convention encapsulates fundamental “liberties” such as entitlement to a fair trial, and freedom from punishment or sanction without due process of law (Articles 5 and 6), which come directly from the Magna Carta. Freedom from torture (Article 3) has been ours since at least 1640. Unfortunately, there are many historic examples of these liberties not always being upheld here. One of the great achievements of both the Convention and the Human Rights Act (1998) has been to make those liberties more accessible.

In promoting the Convention and adhering to it, we have followed a long tradition that has seen our national self-interest bound up in promoting international order. Since 1815, we have signed over 13,000 treaties of which 800 contain mechanisms to resolve alleged violations. Each one acts as a “constraint” on our freedom of action as a nation. But the benefits of setting international standards have traditionally been seen to outweigh any diminution in sovereign autonomy.

There are now 47 member states contracted to uphold the Convention, of which many have poor records on human rights and continue to face problems. The decisions of the Court of Human Rights regularly centre on these states. They often relate to violations of basic rights, such as being beaten up in police cells, being denied access to a lawyer, trial processes that are obviously unfair and discrimination against vulnerable groups. They are rarely reported in our media. But in almost all cases the judgments are implemented and damages paid when awarded by the countries concerned. It has made the Convention one of the most effective global tools in improving human rights.

This is not to say that the Court’s interpretation of the Convention is without issue. It has suffered from its transformation into a final court of appeal for those states whose justice system is wanting. This has made it unwilling to allow national courts and parliaments to interpret Convention rights in line with that nation’s own political and cultural concerns. The most obvious example is Prisoner Voting. Ken Clarke and I tried to address this in the negotiations which led to the Brighton Declaration in 2012, which was designed to reduce the number of cases considered by the court. Early signs of change are encouraging. Recent decisions on political advertising and the use of hearsay in our criminal justice process have upheld national practise. We might have achieved more if it had not been for the suspicion that the United Kingdom was intent on undermining the Convention rather than reforming it.

The Conservative paper confirms all those fears. It proposes repealing the Human Rights Act and replacing it with a Bill of Rights that incorporates the text of the Convention because “the UK stands by its commitments when we signed the Convention.” But in the same breath it announces that the rights will be qualified and reduced where government and Parliament think fit. It identifies restrictions on deportation under Article 8 (the right to a private and family life) and under article 3 (protection from the risk of torture and degrading treatment), as its targets. It also says that Human Rights laws will only be invoked for “the most serious cases.”

This approach overlooks that most decisions on interpreting these key articles have been done by our national courts. The effect will not be to free our courts from following Strasbourg decisions—something they are already doing where they think it right, but of reducing their ability to apply Convention principles to individual cases.

This approach is a recipe for chaos. At present the existing Convention rights underpin the powers devolved to both Scotland and Northern Ireland and now Wales. If the Convention rights are qualified, will the devolution settlements then be altered? In the case of Northern Ireland they are part of an international treaty. Or will the changes be confined to England and the reserved powers of the UK government—creating two different systems of rights in one country. How will the courts be expected to reconcile those differences?

The stated aim that “trivial” violations of rights will not be settled by a court of law, and that Parliament will determine a threshold, below which Convention rights will not be applied, begs the question as to how and where this line is drawn. By usurping the role of our own courts in interpreting the law, Parliament will be more to blame than the Strasbourg court for micromanaging the Convention. A degree of injustice caused by this lack of flexibility is inevitable, and will only fuel conflict between executive and judiciary.

But, the paper’s biggest reveal is the assumption that having made all these changes, the United Kingdom should be able to seek a special status within the Council of Europe that allows it to remain a signatory of the Convention while treating the judgments of the Strasbourg Court as merely advisory, despite it remaining a legal obligation for other countries to comply with them. It threatens withdrawal if agreement cannot be reached on this. It also leaves in the air whether or not the United Kingdom will breach its international legal obligations by failing to implement judgments.

It ought to be obvious to the paper’s authors that such an outcome is impossible without destroying the Convention’s effectiveness. Why should a state subject to an adverse judgement comply with it if the UK can ignore its own? The proposal undermines entirely the principles that underpin international law. It represents a failure of ambition by the Conservative Party on the global promotion of human rights, and is contrary to the line we have previously maintained in government. It is this, along with the lack of reasoned argument in the paper, and occasional errors of fact, used to justify its conclusions which make it such a depressing read. It makes it all the more important that those who believe in the rule of law and our freedoms should make their voices heard.