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Brexit Could Be The End Of The Phoney War Over Human Rights - The Real Fight Starts Now

30/05/2017 11:51
Johnny Greig via Getty Images

It is over half a decade since Theresa May famously told a party conference that "we all know the stories about the Human Rights Act... The illegal immigrant who cannot be deported because - and I am not making this up - he had pet a cat". But the debate over human rights hasn't moved on since #Catgate. The national conversation has often sounded more like a joke without a punchline than a serious policy debate. Reading the 2017 Conservative Party manifesto, it seems like the extended political pyschodrama over human rights may finally be coming to an end. Or perhaps reaching the end of a beginning.

We begin our story in 1998. Shortly after winning a landslide election victory, New Labour made a revolutionary change to the UK's constitution. The Human Rights Act gave the UK its first (technically second) bill of rights. It contained a list of basic rights, guaranteeing free expression, freedom of religion, the right to liberty, the right to privacy and others. Since then, the Act has had a profound effect on key areas of our lives. What isn't to love?

A lot, according to much of the press and some politicians. Since 1998, there has been a steady drumbeat of criticism over the Act's alleged failings. This has corroded public support for a law which one might have thought would be popular. The critique originated in the media, where the right to privacy and family life has been a particular bugbear, but it has enthusiastically picked up by politicians. Many have said they will "do something" about human rights. But what? And when?

By 2003, Tony Blair was already distancing himself from his great legal innovation. He said that to stem the flow of asylum seekers it may be necessary to "fundamentally [look] at the obligations we have under the convention of human rights". The 'heir to Blair', David Cameron, then announced in  2006 that the Conservatives would scrap the Human Rights Act and replace it with a "UK Bill of Rights".

Cameron's dream of changing a system which made him feel physically sick was never realised. Leaving the Human Rights Act in place was a condition of the Coalition agreement with the Liberal Democrats in 2010. Instead of a bill of rights, there was to be a 'Bill of Rights Commission', with four representatives from each of the Coalition partners. The result was like a reality TV programme without the cameras (or interest). There was drama, as one participant form the Tory side was evicted by his own team. but the end result was frustration on all sides.

That abortive Commission demonstrated many of the strange features of the human rights 'debate' in miniature. The constant but unfocussed calls for reform. The way in which criticism of human rights laws has become a cipher for criticism of the larger European project, although the Convention had nothing to do with the European Union. And, relatedly, the frustration on the Conservative side that the Human Rights Act is anchored by the European Convention on Human Rights - with an emphasis on the European. The reality is that reducing rights in the Human Rights Act would lead to a confrontation with European Court of Human Rights, and potential exit from the European Convention which underpins it. But "ECHRexit" is a red line for many centrist Tories.

Theresa May's ascent to the Conservative Party leadership in 2015 could have resulted in major changes to human rights. The now-Prime Minister had been a longtime critic of the Human Rights Act and one of the only senior politicians who openly argued for the UK's withdrawal from the European Convention. But Brexit intervened. Despite the Conservatives winning a narrow majority in 2015, with a new bill of rights featuring in the manifesto, again it was not to be.

The Brexit vote put back Conservative ambitions in two important ways. First, on a practical level, Brexit would take up so much time and energy that it became impossible to manage a sensitive constitutional reform process, such as a new bill of rights, at the same time. Secondly, and perhaps more importantly in the long term, the rancour over human rights reform had often been engorged by a displaced frustration with the EU. Often the EU and ECHR would be conflated in debates and human rights reform dangled as a sop to frustrated Brexiteers. Now that the what might be called the true issue has addressed by the Brexit vote, there may be little appetite for human rights reform in the near or medium term.

As much is clear from the Conservative manifesto. For the first time since it was promised in 2006, there is no mention of a British Bill of Rights  Instead, there is the statement that a Tory government "will not repeal or replace the Human Rights Act while the process of Brexit is underway" but will "consider our human rights legal framework when the process of leaving the EU concludes". Meanwhile, the manifesto says the UK will remin part of the European Convention on Human Rights "for the duration of the next parliament". The matter has therefore been put off for a while. Meanwhile, both Labour and the Liberal Democrats promise to retain the Human Rights Act.

Where we go next is not clear. Our Prime Minister and her Chief of Staff Nick Timothy have long been advocates of leaving the European Convention, and are no fans of the Human Rights Act. If the Conservatives win the Election, we can probably assume that changes to human rights laws will be delayed but not forever. Human rights reform may come in useful as distraction for hard Brexiteers who are disappointed by a moderate final deal.

In the meantime, we have a temporary respite from the "human rights debate" to do the important work of convincing people that human rights laws make the UK a fair, more equal and more just country. That they are a fundamentally British and don't just help the villains we read about in the newspapers. Perhaps then we can finally move beyond Catgate.

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