The newly appointed Justice Secretary, Michael Gove, kicked off the Conservative Government last week with a pledge that within 100 days he would abolish the Human Rights Act, his intention, to replace it with a British Bill of Rights. But even supporters of the reforms, such as the barrister, Martin Howe QC, who is helping to draft the Bill, are somewhat sceptical of this accelerated timetable.
It is difficult to envisage how such a complex change in the law can be properly implemented and sufficiently consulted upon, in such a short space of time, especially, as the Bill is yet to make a public appearance.
Those anxious of what the Bill might contain must rely on an eight page policy document published by the Conservative Party back in October of last year, the contents of which suggest that the former Justice Secretary, Chris Grayling, did not fully appreciate the mammoth task ahead.
The Conservative Government wants to "bring rights home" by curtailing the authority of the European Court of Human Rights in Strasbourg and restoring the supremacy of the Supreme Court and the sovereignty of Parliament. The Government believes that the effect of abolishing the Human Rights Act will be to prevent politically undesirable Strasbourg rulings from being enforced in the UK. But this endeavour by the Conservative Government betrays their stark misunderstanding of how the Act really works.
Under the Human Rights Act the UK Courts are only required to "read and give effect to" Acts of Parliament, in a way that is compatible with Convention Rights. If this proves impossible, the UK Courts can only issue a "declaration of incompatibility" but this has no binding authority over Westminster, nor does it overrule the Act of Parliament subject to scrutiny. Furthermore, the UK Courts are only required to "take into account" judgements of the Strasbourg Court when deciding the issue of human rights on a national level.
It is not the Human Rights Act that obliges the Government to respond to judgements of the Strasbourg Court but rather, Article 46 of the Convention itself, "the High Contracting Parties undertake to abide by the final judgement of the Court". To truly "bring rights home" the UK would have to pull out of the Convention, which in turn would mean being forced to leave the Council of Europe, rewrite devolution arrangements in Scotland and Wales, and breach the Good Friday Agreement that finally resolved the peace process in Northern Ireland. The Scottish Government has already confirmed that it will withhold legislative consent on the proposals and under current devolution legislation, Acts of the Scottish Parliament must comply with the Convention.
If these legal hurdles weren’t enough, little is being said about the effects of the Lisbon Treaty which made the European Union's Charter of Fundamental Rights legally binding on member states when applying EU law. The Charter entrenches into EU law the rights enshrined in the Convention. Furthermore, unlike the Convention, the European Communities Act gives EU law direct effect, with the result being that the Charter can be used to disapply Acts of the UK Parliament. Add to this Article 7 of the Treaty, which gives the European Council the power to strip a member state of its EU voting rights if the member state in question breaches one of the core values of the Union, namely, a respect for human rights.
It just isn’t as straightforward as repealing the Human Rights Act and there aren’t enough lawyers in Westminster to bring about this kind of constitutional reform within 100 days. With all these challenges to overcome, you might wonder why the Conservative Government is bothering to do so at all. The rights contained within the Convention are not controversial, they are basic and fundamental. The right to life, liberty, a fair trial, freedom of thought and expression, and many commentators believe that the Convention does not go far enough to protect of basic social or economic rights.
Rumours of what the proposed Bill will contain have alarmed some human rights campaigners. Most worryingly the Bill seeks limit challenges to the most serious cases and to categorise people into UK citizens, EU nationals and non-EU foreigners, excluding those who "do not fulfil their responsibilities in society". This somewhat undermines the principles of equality and as the International Bar Association on Human Rights points out, "human rights can only be an effective mechanism for protection if they apply to all people and all cases".
The European Convention on Human Rights is one of the greatest international achievements of the 20th century. In the wake of the Second World War, during which the people of Europe were subject to the most abhorrent violations of their freedoms, the Convention was a declaration to the World that Europe would never again allow these fundamental human rights to be systemically abused. If the UK defies the decisions of the Court and pulls out of the Convention, as the former Conservative Attorney General, Dominic Grieve QC, has warned, "respect for the law will be undermined across the entirety of Europe".