The next Conservative manifesto will promise to scrap the Human Rights Act. It's why [justice secretary] Chris Grayling is leading a review of our relationship with the European court [of human rights]… And it's why the Conservative position is clear – if leaving the European convention is what it takes to fix our human rights laws, that is what we should do.
This development forms part of a long-running ambition on the part of certain politicians to “fix our human rights laws” in the UK. However when we consider the motivation of these figures, what it is that they believe needs “fixing”, we find the most compelling arguments for leaving what we have in place.
By effectively handing power to the courts to consider the validity of legislation on human rights grounds, the HRA places limits on the power of governments, particularly home secretaries, in a scenario which was always going to lead to conflict between the executive and the judiciary. Indeed on the eve of the HRA coming into force there were those in the legal profession who foresaw the battles ahead:
The judges said if you incorporate the HRA you are going to bring us into the centre of socially controversial policy, which is not where we are used to being. If that is what parliament wants we will do it, but the quid pro quo is you the politicians must accept that you have asked us to do the job and you cannot throw sticks and stones at us when we do1.
The words of this lawyer proved prophetic as New Labour got its nose bloodied by its own legislation in a series of cases which turned on the government’s desire to tackle homeless asylum seekers by limiting their access to benefits. Repeatedly passing legislation which amounted to “enforced destitution” in the eyes of the judges, Labour’s efforts were falling foul of the Article 3 right to freedom from torture, inhuman and degrading treatment. Then Home Secretary David Blunkett did not take kindly to the judiciary applying the letter of the law to his party’s legislation (despite being asked to) and he responded with exasperation:
Frankly, I'm personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them…We will continue operating a policy which we think is perfectly reasonable and fair2.
In the previous lament Blunkett was of course appealing to the notion of Parliamentary Sovereignty, the idea that in the UK it is the will of Parliament that is supreme. This notion is challenged by those who seek some sort of guarantee that if, for example, Labour had decided to pass legislation that made it policy to execute every asylum seeker upon entry to the UK there would be a process to prevent such authoritarianism. By incorporating the ECHR into UK law the HRA performs that function, but in doing so it limits the power of UK Parliaments to make any law they like and this has made it deeply unpopular, as governments like nothing less than being limited in their powers; and one can assume therefore that it is this element that May thinks need “fixing”. However, this not how it is presented by May and her supporters in the press who argue that the ECHR unfairly and excessively interferes with UK sovereignty. The problem with that argument is an acute lack of evidence to support it, with the overwhelming majority of challenges, for example under Article 8 (right to private and family life), being dismissed by the courts in this country, some 98% to be precise. Even in cases where the UK has been seen to be falling foul of the ECHR it is always left entirely up to its Parliament to choose its response.
Over the course of the HRA’s short life it has foiled many a home secretary’s plans to lock people up without charge, send people to places where they might be tortured and deny a basic level of human hospitality that one would expect from a nation that prides itself on being civilised. In every instance, on being informed that what they are trying to do does not fit the standards of civilised nations set in the 1950s, the politician in question has reacted by querying the wisdom of those who seek to limit their power and threatening to pull out of the ECHR. To say this is an overreaction is being charitable, it has been described by Alan Sked as “throwing a hissy fit”, and when the founder of UKIP is calling you hysterical then it is surely time to consider one’s place in the universe. Mr Sked made the above observation in specific reference to Theresa May’s reaction to her foiled efforts to deport Abu Qatada and it is fair to say she joins both Mr Blunkett, John Reid and Jack Straw in the list of ministers whose toys left the pram at an alarming rate upon being told “no” by the judiciary. But this is more than political foot-stamping, the campaign by politicians to scrap the HRA and pull out of the ECHR, cheer-led by a disingenuous press, has massive constitutional ramifications, as well as the potential to harm the UK’s soft-power credentials and its standing in the world.
When asked what people in the UK could do to aid those activists who were fighting and dying in the streets as part of the Arab Spring (fighting and dying in the name of democracy, civil rights and the rule of law) one such activist replied “keep you human rights laws”. This captures what is at stake when May and co. speak of pulling out of the ECHR, the UK is seen the world over as a land where basic rights are protected, as a place where people are seen as equals and the rule of law matters. In establishing universal suffrage and being the only nation to fight Nazism alone for two years the UK purchased a 20th Century foot hold in the narrative of liberty that it consolidated by helping draft the ECHR. It has enjoyed considerable political capital as a result. To reject this document now is to turn its back on previous generation’s struggles and take a regressive step. The only democratic nation to ever pull out was Greece in the 1970s as part of an authoritarian junta- this is strange company May and co. are seeking to keep. It is company that includes the socialist government of Venezuela who have just pulled out of the Latin American Court of Human Rights and the Russian government who have expressed sympathy with those who have to deal with the inconvenience of the ECHR. These are not obvious bedfellows of the Conservative Party. What links them is a distaste for having their power limited by the rule of law and as such they provide a striking case for keep the HRA.
1 “Barrister 1” in Asylum, Welfare and The Cosmopolitan Ideal: A Sociology of Rights, Morris, 2010
2 BBC Online 20th February 2003, accessed 18th April 2012.
