Apocalypse soon: The Conservatives reveal their real plans for human rights

by Adam Wagner

It turns out that the Prime Minister missed out the really important bits about the Tory plans for human rights reform from his Conference speech. My cautious optimism in my post was entirely misplaced too.

We will be covering the announcements in detail in the coming days, but in the meantime, the full proposals, named, with major chutzpah, Protecting Human Rights in the UK, are here.

My provisional thoughts are below, subject to the qualifier that many of the wackier proposals in this document are highly unlikely to make it through Parliament, even if the Conservative Party wins a majority in the next election. In that sense, this may be more about electoral politics than a solid plan. But for the purpose of this post I will assume the document is a serious proposal and not just a major trolling exercise.

I can see why Grieve, Clarke and Hague had to go. The plan to make European Court of Human Rights judgments “advisory” is a full frontal attack on an international treaty which we signed up to and haven’t withdrawn from. For the UK to be under an international legal obligation to “abide by” judgments of the ECtHR and for Parliament simultaneously to legislate that those judgments are only advisory is incoherent at best and anarchic at worst. It demonstrates to the whole world that the UK Parliament has no truck for international obligations.

The fact that the Ministerial Code will be amended to make clear to ministers they are not bound by international law. Is that what the public wants? That the UK is no longer bound by international law?

It is also cowardly. If the intention is to withdraw from the ECHR, then that should be the policy. We should probably have a referendum about it. But these proposals are an attempt to pick a fight with the European Court/Council of Europe under the banner of “protecting” human rights. If the Council refuses to accept change, then the UK will withdraw, or will be expelled. In reality, the UK would be setting terms which the ECtHR cannot possibly accept – if it were to sanction what the UK is proposing then it would be losing the only genuine power it has, to enforce judgments

There is a genuine possibility that the ECHR project will now collapse. One of the features of international law is that it relies to a large extent on the good will of the states involved and their legislatures in respecting the obligations – what is the ECtHR going to do if Russia decides not to abide by a judgment… invade the country?

Another view is that if you really break down what this proposal is saying then it will make little difference in practice. The ECHR doesn’t bind Parliament, but rather the UK as a whole. However, if Parliament decides that it will reword the treaty without withdrawing from it, that is an incoherent approach (as Grieve described it ). It actually has the potential to undermine Parliamentary sovereignty, not strengthen it, by precipitating a constitutional crisis. The ECHR is not directly enforceable in domestic courts but who knows what the more creative judges and lawyers will do with this.

The point about devolution is also really sticky: see Aileen McHarg’s post. Almost certainly, Scotland and Northern Ireland (and perhaps Wales) will challenge the right/ability of Westminster to impose this on them. I think they may win that argument meaning the supposed bill of rights will be England only. Less human rights for the English. Not such a catchy slogan.

The paper contains major factual errors. Like this: “In 2013 the Strasbourg Court ruled that murderers cannot be sentenced to prison for life, as to do so was contrary to Article 3 of the Convention”. Not true. At all. Here is my post on my successful complaint against The Sun for saying exactly that.

On obligations, which are to “rebalance” the existing rights. What this really amounts to is a politicisation of a rights instrument. Of course, a party which wins a majority in a first past the post system gets the opportunity to impose laws which those people who didn’t vote for the party will object to. The quid pro quo is that if the other party win the next election, they can reverse those laws. But rights instruments (at least, the way they are understood across the world) are intended to sit above party politics and permit scrutiny, from a largely apolitical perspective, by judges of executive action. By recalibrating the rights according to the political beliefs of one party (and from the looks of it, only one section of that party), it turns the supposed “bill of rights” into something quite different: a kind of legal backstop for ideology.

It’s grim stuff. The Sun, Daily Mail, Express and Telegraph have almost won. The monstering has had its effect. More to come.