Human Rights Act: the new UK government is barking (loudly and incoherently) up the wrong tree
When the new UK Justice Secretary, Michael Gove, eventually gets around to reading the Human Rights Act for himself, will he be surprised at what he finds? Of course the Human Rights Act has raised hackles on some occasions – and eyebrows on others. But there can be few pieces of legislation that have attracted quite so much ill-informed bluster.
Clearly the aims and workings of the UK human rights regime have not been communicated well. Newcomers to the legislation are generally surprised to discover, for instance, that the regime was not foisted upon the UK by the EU. And that, far from making UK courts slaves to Strasbourg, the Human Rights Act only requires UK judges to “take account of” Strasbourg judgments. And that, contrary to just about everything you read or hear, the Human Rights Act does not give judges the power to strike down UK legislation. In other words, the regime is much more flexible, and much more respectful of UK parliamentary sovereignty, than its detractors pretend.
It is therefore encouraging that the UK government now seems inclined to at least have a bit of a think. Although scrapping the Human Rights Act was listed as a priority action in the Conservative election manifesto, the first Queen's Speech of the new parliament (delivered in May 2015) contains no promise of new legislation – only a plan to “bring forward proposals for a British Bill of Rights.”
Let's have a sensible debate, by all means, about what a British Bill of Rights could look like. But, in the interests of a sensible debate (as opposed to the one we have endured thus far), politicians need to be a lot more up-front with the British people about what ditching the Human Rights Act will really achieve in practice. This is because, whatever the fate of the Human Rights Act, the Convention rights (which are, for the time being, implemented into UK law by the Human Rights Act) could still be enforced in Strasbourg. At most, all that will be achieved by ditching the current arrangements will be to preserve a way of enforcing Convention rights for the well off and well resourced, while the rest of us can whistle.
But the Conservatives' plan to “repatriate” rights could easily backfire too. With the mandate under the Human Rights Act taken away from the UK courts, the Strasbourg court will once again be pronouncing on cases that, under the Human Rights Act regime, would probably never have reached it. In other words, expect to see more infuriated Home Office ministers on morning TV shows, rather than less.
Unless, of course, we pull out of the Convention altogether. Mr Cameron doesn't want to go there for now. He is right to be nervous. The implications of such a step – for the Good Friday Agreement, for devolution arrangements, for potentially a mass of other legislation and, not least, for the UK's standing and moral authority as a leading nation on human rights – are immense. But if the UK wants a human rights regime that is materially different from the Convention regime (i.e. the regime we already have in the UK under the Human Rights Act), then that is what will have to happen. The sooner we all stop pussyfooting around this point the better.
Now that the election shenanigans are over, it is time for Conservative politicians to call a halt to the dog whistle stuff and start behaving like the responsible “one nation” government they claim to be. As far as the future human rights regime is concerned, they need to start thinking objectively and strategically about the advantages and disadvantages of different scenarios. To avoid making costly and potentially irrevocable mistakes, it would be beneficial (and indeed a pleasant change) if our political leaders could draw from reliable evidence about how the Human Rights Act is being used in practice, rather than from vague impressions gained from the hysterical, selective and, in some cases, entirely misleading reporting of individual court decisions in the British press. If we can get the conversation moving beyond immigrants' cats and whether prisoners should have fried chicken, then we will have made some progress. Perhaps that is what Mr Gove is doing right now. We can only hope.
During the election campaign, the Conservatives made some bold claims about how they were the real champions of “ordinary hard-working people”. We will find out over the coming months how deep this goes. Because in order to expedite a few deportations and regain a few votes back from UKIP, the UK government may manage not just to remove an important means by which we “ordinary hardworking people” can challenge the decisions that affect our lives, but also to exacerbate inequality, to remove some key drivers for improving public services, to cause havoc to key political settlements relating to the future of the Union, and to completely undermine the UK's moral authority when it comes to standing up for human rights internationally, including in the field of business and human rights.
If Mr Gove can justify all that to the British electorate, then good luck to him.
But it doesn't make a whole lot of sense to me.
Jennifer Zerk Consulting: +44 (0)1223 207305 - firstname.lastname@example.org