The replacement of the Human Rights Act has been kicked into the long grass – let’s make sure it stays there

The Conservative Party’s 2015 General Election manifesto committed them to the repeal and replacement of the Human Rights Act. Arman Sarvarian argues that the Government’s decision to postpone the measures (announced in yesterday’s Queen’s Speech) is a good one, but that lawyers, concerned citizens, and the Conservative Party should resist it if and when it reappears.

UK Parliament, CC BY NC 2.0

The government has beaten a tactical retreat over its plans to repeal the Human Rights Act, reportedly due to the disquiet of senior Conservative backbenchers.

It had originally planned to bring a bill before parliament in this session to replace the act with a British bill of rights but this was watered down at the last minute. At the state opening of parliament, the Queen announced that the government would merely “bring forward proposals” for a bill. It is now widely anticipated that a (presumably public) consultation will be held before any measures are brought before parliament.

The bill was a key Conservative manifesto pledge in the run-up to the general election. The ostensible aim is to “break the formal link between British courts and the European Court of Human Rights” and to hand greater power to the UK Supreme Court. Despite the reference to the Supreme Court, it has been suggested that parliament would be empowered to overrule judgments of the European Court of Human Rights in individual cases.

However, it appeared to be increasingly unlikely that the bill would survive passage through parliament. The government has a majority of just 12 in the House of Commons – which, with opposition parties united against the proposals and senior Tory backbenchers in revolt, makes it difficult to be sure of success on any matter that divides the Conservative Party. The lack of a Conservative majority in the House of Lords, which includes a number of former law lords in its membership, could also lead to amendments and delays.

This ill-conceived proposal – which originates from certain ministers’ ire at “meddlesome judges”, British and European alike – strikes at that most Conservative of ideas, the rule of law itself.

Certain voices in the Conservative Party, most prominently Home Secretary Theresa May, have long disliked the European Convention on Human Rights and the Human Rights Act. Yet, they ignore its Conservative roots.

The most influential man in the inception of the European Convention on Human Rights was David Maxwell Fyfe. This Conservative Attorney General, Home Secretary and Lord Chancellor was also de facto chief prosecutor at the Nuremberg trial after the war. He was no “squeamish liberal” – he favoured the death penalty not only at Nuremberg but also subsequently as Home Secretary.

He saw the Council of Europe and the convention as instrumental in building a post-war Europe founded upon peace and the rule of law. In this, he stood on the shoulders of generations of British lawyers who had developed the ancient common law principles that influenced the convention, such as the prohibition of torture and the right to counsel.

Small wonder then, that the best legal minds in the Conservative Party are against the proposal, which is being spearheaded by the first two laymen to serve as Lord Chancellor in at least four centuries – Christopher Grayling and now Michael Gove. Dominic Grieve, the former Attorney General who was sacked last summer for his opposition to these very proposals, and former justice secretary Kenneth Clarke, are among those against the plan.

Now, apparently reckoning that there are too many voices in the party backing Grieve and Clarke, the prime minister has tactically withdrawn for fear that the bill would be voted down.

In defence of the status quo

In the post-war period, successive Conservative and Labour governments remained steadfastly committed to the convention system. Distinguished British lawyers served as judges and presidents of the Strasbourg Court, even as the court occasionally ruled against the UK on important cases (such as the perpetration of inhumane treatment, a lesser form of torture, in Northern Ireland during the Troubles).

The anomaly of the British courts being unable to decide claims based on the convention was resolved when the Human Rights Act was enacted in 1998. This empowered British courts to deal with human rights claims in this country and required all governmental bodies to comply with the convention in the exercise of their powers.

An immediate and beneficial effect was empowering British judges to hold ministers to a higher standard of decision-making. Even as certain ministers have made it their mission to rid themselves of meddlesome judicial oversight, the legal professions who work with the act on a daily basis overwhelmingly favour its retention.

If the act were to be repealed – as the government still presumably hopes – British judges would not be able to apply the convention directly in the UK. Applications from Britain to the Strasbourg court would pointlessly increase as the British courts would be unable to filter claims before they go to Strasbourg – a strange way to give the British Supreme Court “more power”.

The notion that British judges are constrained by Strasbourg in their influence on human rights law is false. The Human Rights Act requires British judges to take account of Strasbourg judgments – the result of a Conservative amendment during the drafting of the act that precludes Strasbourg precedents from binding British courts.

Although these reforms were ostensibly driven by the dispute about allowing prisoners to vote, their practical effect would be to deprive individuals with serious claims against the UK of a remedy from a domestic court and to dilute international oversight of British compliance with the convention.

Time to act

Whatever the avowed purpose of the reforms, their practical effect would be to threaten to subordinate judges, British and European alike, to the whims of ministers and parliamentarians on individual cases. The rule of law – that time-honoured tradition, stretching back to the Bill of Rights 1688 and beyond, of independent and professional judges rather than unqualified ministers and parliamentarians applying the law to individual cases – would be grievously harmed.

Those parliamentarians with legal knowledge appear to have recognised these proposals for what they are – an affront to the great British, and Conservative, ideal of the rule of law.

The decision to consult the public is a tactical postponement of legislation. The government and the Conservative Party remain committed in principle to the proposals. As a lawyer – indeed, as a Conservative – I call upon the British public to use this consultation as an opportunity to register robust opposition to any change in the status quo. I also call upon Conservative Party members to pressure the leadership to abandon this policy and thus uphold the great Conservative tradition of robust commitment to the rule of law.

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This article was originally published on The Conversation. It represents the views of the author and not those of Democratic Audit UK or the LSE. Please read our comments policy before posting.

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Arman Sarvarian is Lecturer in Law at University of Surrey.