If it didn't already exist, then Ken Clarke would have just invented the Human Rights Act.
As the UK prepares to hand over the chairmanship of the Council of Europe to Albania later this month, it's worth reflecting on what's been achieved in our time at the helm. There had long been grumblings from the UK government about the perceived interference of the European Court of Human Rights, in 'British business' and the PM had vowed to use the UK's chairmanship of the Council to reduce the scrutiny of the European Court and reclaim British legal autonomy. That ambition has to some extent been achieved, but I would venture that in so doing the government has inadvertently become an accidental cheering squad for the Human Rights Act.
Last month in Brighton, Ken Clarke hosted a meeting of the 47 countries which form the Council and after two days in a room on a pier, the UK government triumphantly announced the agreement of the 'Brighton Declaration'. The conference was the culmination of a several weeks of intensive negotiation in Strasbourg and six months of frantic lobbying by UK government Ministers flying around Europe bargaining and begging the other 46 countries to accept their proposals. The final document agreed at Brighton was the kind of compromise that is the inevitable response of agreeing a political declaration between countries ranging from Andorra to Azerbaijan, but the main UK proposals are featured in one shape or another.
Some of the UK's original propositions were certainly watered down, including proposed sanctions for states that did not comply with repetitive judgements and the UK's key proposal which would make inadmissible cases which had been properly considered by domestic courts.
The UK government was successful, though, in ensuring that the Brighton Declaration puts political pressure on the European Court to give more leeway to countries which correctly apply the European Convention on Human Rights in their domestic courts. Leaving aside the inappropriateness of putting political pressure on a judicial body, the general principle of ensuring that countries apply human rights domestically, is welcomed by Amnesty.
Ken Clarke's sell to his cabinet colleagues over this achievement, hinges on the idea that the Brighton Declaration sends a strong signal to the judges of the European Court of Human Rights that they should not be second guessing the decisions of UK courts, where domestic courts have considered and applied the rights contained in the European Convention of Human Rights. Of course, the best way to ensure that British Courts are capable of doing so is through a statute which puts the Convention into British law- if it didn't already exist, then Ken Clarke would have just invented the Human Rights Act.
Yet what is truly bizarre is that, having worked hard to secure an agreement on the need to properly implement the European Convention on Human Rights in their national laws, there is still a great deal of noise about repealing the Human Rights Act. That is utterly counterintuitive. Let's be clear about what the Human Rights Act does; it obliges public bodies in the UK to comply with the rights set out in the European Convention and it allows people to bring cases in UK courts when they feel those rights have been violated. It also ensures that UK courts properly consider human rights issues in light of the European Court's case law, making it much less likely that those decisions will be reconsidered. If the Human Rights Act were repealed and replaced with a lesser model, the model proposed in Brighton would result in more Strasbourg interference, not less. Rather than 'repatriating' human rights powers, the UK would be putting itself forward for greater scrutiny.
Ultimately, Brighton provides that the European Court still retains the power to consider cases from the UK, but in a study published by the London Met a few weeks ago, it was shown that between 1999 and 2010, the UK lost in just one in 50 cases - precisely because rights are well protected at home.
Let's have no more of this vitriol directed at the Human Rights Act. There is a risk that successive governments have been fighting against all perceived apparatus of human rights for so long, that they won't know when to stop, nor when they have already got their way. The best way to set an example to our colleagues across Europe now and to ensure the role of the UK courts and Parliament in protecting human rights, would be to protect and bolster the Human Rights Act. It is not a national enemy, indeed it is the single most effective method by which we can legitimately operate without the need for decisions to be overturned by Strasbourg.
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