Britain is waking up this morning to the prospect that our future rights will be eroded under a Conservative government. There is jubilation, at least in some newspaper front pages about the return to British values, away from the "madness" of human rights, but the Conservative proposals need to be considered from a legal perspective, rather than from a point-scoring agenda. It is from that legal perspective that it becomes abundantly apparent that the proposals are neither workable, nor logical and in the words of the former attorney general, Dominic Grieve, "almost puerile".
Misleading on the powers of the European Court
There are problems in the Conservative plan at almost every level. In failing to properly set out the current legal position, they misrepresent and mislead the public as to the current powers of the European Court, whilst omitting any proper legal consideration as to what the consequences would be both domestically, and internationally. For example, the proposals trumpet the "end the ability of the European Court of Human Rights to force the UK to change the law". But, as matters stand currently, the Strasbourg court cannot force the UK to change its law. The Human Rights Act recognises the sovereignty of Parliament inherently in section 4 of the Act. Parliament must consent to any change in law which is intended to take account of a European Court judgment. Indeed, Parliament has not been asked to do so in respect of the Strasbourg decision on prisoners' right to vote, despite the vocal political unhappiness with the decision. Even if Parliamentary sovereignty is protected, there still exists in this country a right to judicially review decisions, despite significant attempts by this government to limit it.
Whilst Section 2 of the Human Rights Act requires UK courts to "take into account" Strasbourg case law, that is all they are required to do. Domestic judges have shown themselves adept at acting in accordance with that diktat. If the Act is repealed, the proposals fail to spell out the consequences for litigants. The Convention still applies to them. The proposals often sound radical, but are actually meaningless. For example, the stated intention to "make the Supreme Court the ultimate arbiter of human rights matters in the UK" is a legal nonsense. The Supreme Court already is the ultimate arbiter of human rights in the UK. However, if the Human Rights Act is repealed, the irony is that it may lead litigants straight back to Strasbourg. Unable to seek a remedy at home, Strasbourg once again becomes the ultimate arbiter on human rights matters for them, adding yet further caseload to the European Court's burden. It is only if the European Convention is removed from our grasp, altogether, does that cease to be an option.
What, too, of the remaining international obligations that exist for the United Kingdom, in the form of various treaties and conventions which we have ratified? There are many, often cited before the domestic courts and used in the protection of the rights and lives of the most vulnerable in our society. The government has chosen to highlight the rights of "terrorists" or "illegal immigrants", whilst failing to recognise the plethora of people, for example disabled individuals, who benefit from the protections inherent in both the European and international frameworks. It is a legal fiction that we can disentangle ourselves from one and not the other.
It is precisely that failure to grapple with the UK's European and international obligations that leaves these proposals with gaping holes. There is a wholesale failure to recognise that English courts, with or without the Human Rights Act, nevertheless will and must take into consideration the various international treaties and conventions which the UK has ratified, and to which we are bound. That is what happened in respect of Strasbourg case law, pre-2000 when the Act came into force, and that is what will happen, again, unless the Conservative government do in fact plan to lead Britain out of the Council of Europe, and outwith the reaches of the Convention. Such may be the intended side-product of the proposed plan to make "some" European Court of Human Rights judgments "advisory", subject to the agreement of Parliamentary committees. However, since David Cameron clearly wishes to remain part of Europe, these threats appear politically unrealistic, and simply unworkable.
A sliding scale of rights?
Looking then at the narrative on the substantive rights themselves, despite the recognition that the Convention would be placed into primary law, there appears to be an intention to substantially rewrite the fundamental rights and freedoms which most of the world has embraced universally, through a variety of interconnected treaties and conventions. This intention is deeply partisan and intends to impinge entirely improperly on the rights framework on which we are al entitled to rely. The proposals intend to "clarify the Convention rights, to reflect a proper balance between rights and responsibilities". Lack of detail aside, that statement is deeply worrying.
The proposal amounts to a redefinition of rights and responsibilities that permits the State to set out new, and subjective, parameters of what constitutes responsible behaviour, of which it approves, which only then entitles the person concerned to a recognition of his or her human rights. In other words, a person's human rights might be considered to be a "bonus" for model citizen behaviour. Take the proposals about redefining "degrading treatment". That brings to mind the question marks being raised during and after the 2003 Iraq war as to what constitutes "torture"? Is it Mr Grayling who is to decide how that redefinition should result?
Moreover, nothing in the proposals properly reflects that many Convention rights which are not absolute, such as freedom of expression or the right to a family life, already involve our own judges (as well as those in Strasbourg) in a balancing act that ensures that proportionality is a key concept. It is through this balancing act that judges ensure that the Convention remains a living instrument. The social norms of the 1950s are not reflected now by judges interpreting the Convention, and the continued retention of a system by which today's norms will not bind judges in 2050 is to be applauded. This is not "mission creep", but mission on the way to being achieved.
The proposals suggest that there will be new minimum standards, so that "only the most serious cases" will be permitted to proceed. "Trivial" cases, say the government, will be thrown out. But "trivial" according to whom? The purpose of a human rights framework is to ensure that the citizen is protected against the excesses of the State. The proposals suggest that it will be the government of the day that defines itself what those excesses will be. The proposals also suggest a sliding scale of rights, according to whether the government considers that the complainant merits such rights. Human rights exist for all human beings. It should not be in the gift of government to decide whether to apply them to person A or person B.
These proposals set Britain back on a path to the first half of the 20th Century in which the international frameworks of rights and State responsibilities had not yet been developed. Britain is now part of a globalised 21st Century world which is defined, at least in part, by international commitments to the rule of law. Britain, in her dealings with the international community, publicly sets store by those commitments. Those states which have chosen not to endorse that framework have become pariah states. If the underlying premise of Conservative policy is to retreat from those obligations and to let Britain stand alone, then that position should be spelled out clearly. Since that step would be unthinkable to all but the most extreme of our politicians, the Conservative party need to ensure that their most able lawyers look again at these proposals. The public are entitled to an informed debate over constitutional issues. If there is a silent desire to remove us from the European Convention on Human Rights, we should be told that in terms. If that is not the intention of this government, but rather a play to the more extreme fringes of politics, these ill-considered proposals on the abolition of the Human Rights Act will lead us sleepwalking into disaster. Britons should be deeply proud of their involvement and influence over the international and European human rights framework, in which British lawyers played a key role. And Britain should be proud of, not undermine, the Human Rights Act.