Reports of the Human Rights Act’s death have been greatly exaggerated

by Adam Wagner

The Home Secretary Theresa May’s has told the Sunday Telegraph that she would “like to see the Human Rights Act go“.

There is plenty of nonsense out there about the Human Rights Act. For example Emma McClarkin – a member of the European Parliament no less – said on BBC’s Politics Show (at 5:15) that we are “hamstrung by the European Charter of Human Rights”; a charter which does not exist.

There will more of this before the Conservative party conference is over, so let’s go back to basics with a few questions and answers about the Human Rights Act.

What is the Human Rights Act?

The Human Rights Act 1998 incorporates the European Convention on Human Rights (ECHR) into British law. This means that a public authority – including government agencies, hospitals and even courts – cannot act in a way which breaches those rights. The ECHR is the engine of the Human Right Act, which is the bodywork surrounding it.

Is it going to be repealed?

Probably. So Theresa May will get her wish.

But is that the end of human rights in the UK?

No. A commission made up of 7 lawyers, an academic and a civil servant is currently investigating whether the HRA should be replaced with a UK Bill of Rights. So far they have advised the Government on reform of the European Court of Human Rights – another pantomime villain in this piece – and squabbled. They have to report in just over a year.

The key thing about the Commission on a Bill of Rights is that it is not permitted by its terms of reference to recommend withdrawal from the ECHR. At the moment we have a Human Rights Act, which incorporates the ECHR into UK law. Any Bill of Rights would have to be a “Human Rights Act plus”, as thanks to the Coalition Agreement, it cannot be a “Human Rights Act minus”.

Put another way, the exterior may change but the ECHR engine will remain. So any UK Bill of Rights will be a bit like an updated Ford Fiesta; a new look and a few new features, but essentially the same car.

It may add some traditional “British” rights, such as the right to trial by jury, and try to rebalance some of the existing rights, for example the right to privacy. It may even appeal more to “responsibilities”, which are already threaded in the ECHR anyway. But the result will be very similar.

Can’t we just get rid of the ECHR altogether?

This is, as I have said elsewhere, the £160m question. Practically speaking, the Coalition Agreement says that any new instrument must be one that “incorporates and builds on all our obligations” under the ECHR. This proviso was apparently hard won by the Liberal Democrats so it seems extremely unlikely that the nuclear option would be used in this Parliament without splitting the Coalition.

Legally, the situation is even more complicated. Some argue that withdrawing from the ECHR would necessitate withdrawal from the European Union too. Others, including Rosalind English on this blog, suggest that it might be possible to withdraw from the jurisdiction of the Strasbourg-based European Court of Human Rights without pulling out from the ECHR altogether. And let’s not forget the little discussed but important Northern Irish dimension.

All that said, even if we did withdraw altogether from the ECHR or any similar rights convention, the most senior UK judges have intimated that they could probably find a way to implement the rights, many of which existed under our “British” law before 2000, in any event. Not to mention the fact that the UK has signed up to something called the EU Charter of Fundamental Rights (perhaps that was what Emma McClarkin MEP was thinking about). And the EU itself is about to sign up to the ECHR as an institution, which would further lock us into the ECHR through another route. So whatever its intentions, the UK may find itself tangled like Gulliver in million tiny ropes.

Oh right, but what about those unelected European judges dictating our laws?

Leaving aside the fact that judges in Strasbourg are more democratically accountable than our local ones, the Human Rights Act only mandates our judges to “take into account”any Strasbourg judgment. And, often, our judges refuse to follow European decisions, as was envisaged under Human Rights Act, which was meant to “bring rights home”. But when there is a strong line of Strasbourg case law which seems fairly sensible, our courts will follow it.

There have been plenty of unpopular human rights decisions. In some instances, human rights law has been wrongly blamed. And many of those cases have little or nothing to do with Strasbourg, but rather our own judges making decisions that the public and politicians disapprove of.

But in some rare cases, only a handful each year, the European Court of Human Rights has effectively overruled our own highest court. The most high-profile instance has been over prisoner votes, and this is still the scene of an uneasy standoff between the UK government and the Council of Europe, which monitors compliance with the Strasbourg judgments.

Our Government is concerned, with some justification, that the court has taken its role too far and should not be permitted to tell our Parliament what to do when it has decide to do the opposite. Notwithstanding the fact that it was our Parliament that agreed o abide by judgments of the court in the first place.

Who knows where that will end up, but the likelihood is that the Government will push forward a programme of reform at the court which is already in train, and therefore be seen to be “doing something” without actually making a huge amount of difference.

But what about deporting foreign criminals?

What Theresa May was really saying to the Sunday Telegraph was that she wants more powers to deport foreign criminals. Currently the European Court of Human Rights is supporting a broad interpretation of “family rights” under Article 8 of the ECHR. This is preventing the Home Office deporting people who it would like to, and there appears to be fairly broad consensus in the UK that it has got the balance wrong.

This bad feeling has been stoked by some mischievous reporting by the tabloids and the Daily Telegraph, but the concerns are genuine and shared by many lawyers who otherwise support the HRA.

So what happens now?

What happens now is that there will some posturing and plenty of appeals to those who want to reduce or remove the influence of Europe on our law. But primarily because of the Coalition Agreement, as well as the practical and legal difficulties of withdrawal from the ECHR, not much is going to change.

The reality is that Theresa May, along with the Prime Minister David Cameron, have set themselves narrow, achievable goals. The HRA is likely to be repealed at some time in 2013 to be replaced by a shiny new UK Bill of Rights, which will look different but drive very similarly. Those who think that some kind of fundamental rights convention or charter is actually a good idea, which includes most of our senior judges and the Liberal Democrats, not to mention the Barons who wrote our Magna Carta, will get their wish too. So rights protections will largely remain, but the nonsense is likely to continue.

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