The arguments against the Human Rights Act are coming. They will be false
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Version 0 of 1. In the aftermath of the second world war, nations came together to say “never again”. They established the United Nations and agreed a simple set of universal standards of decency for mankind to cling to: the Universal Declaration of Human Rights. These standards were intended to protect the individual from the state, to uphold the rights of minorities and to provide support for the vulnerable. The idea was simple; these standards would first be enshrined in regional treaties such as the European Convention on Human Rights (ECHR) and then be given legal effect in every country. In the UK this was achieved when Labour enacted the Human Rights Act (HRA) in 1998. The incoming Tory government now intends to strip our people of these universal rights by repealing the HRA. Michael Gove has been appointed as the new justice secretary to lead the assault. In a week when we celebrate VE Day, the irony should not be lost. British politicians, many of them Tory, participated in the drafting of the ECHR in Whitehall because they believed that they were drafting an instrument to reflect the values that we in this country took for granted and which, they thought, vindicated our military triumph. No doubt Gove will peddle the myth that the HRA is effectively a villains’ charter. But the evidence is against him No doubt Gove will peddle the usual myth that the HRA is nothing more than a villains’ charter. But the evidence is against him on that. There has been no fundamental shift in defendants’ rights under the HRA, mainly because legislation passed by the Margaret Thatcher government in 1984 set out clear rights for suspects that have been successfully embedded in our law for many years. By stark contrast, the HRA has heralded a new approach to the protection of the most vulnerable in our society, including child victims of trafficking, women subject to domestic and sexual violence, those with disabilities and victims of crime. After many years of struggling to be heard, these individuals now have not only a voice, but a right to be protected. The Tory plans to repeal the HRA, together with the restricted access to our courts already brought about by the restriction on judicial review introduced by Gove’s predecessor, Chris Grayling, will silence the vulnerable and leave great swaths of executive action unchecked and unaccountable. Gove may try another tack, arguing that the Tories are not against human rights at all, but simply want to keep those pesky judges in the European court at bay. But this argument also unravels quickly. The rights in the ECHR are very simple. They include the right to life, liberty and security of person; the right to a fair trial; protection from torture and ill treatment; freedom of thought, conscience, religion, speech and assembly; the right to marry; the right to free elections; the right to fair access to the country’s education system; and, to top things off, the right not to be discriminated against. Which of these rights would you not want? One of the reasons the much-vaunted Tory “British bill of rights” has never seen the light of day is because any proposal that does not match these basic ECHR rights will be torn to shreds. That only leaves Gove with the shallow argument that our courts are shackled because they are bound to follow the decisions of the European court of human rights. But that argument runs into two fundamental problems. First, the HRA only obliges our courts to “take into account” judgments of the European court; they are not bound by them. Second, it is not the HRA that obliges the UK to respond to the judgments of the European court. It is Article 46(1) of the ECHR itself. Related: Why human rights reform could trip up Michael Gove | Joshua Rozenberg Article 46 states that: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” The UK signed up to that international obligation when it signed the ECHR in the 1950s. Repealing the HRA would have no effect whatsoever on the UK’s obligations under Article 46. The only way for the Tories to achieve what they want is for the UK to pull out of the ECHR and, as a consequence, out of the Council of Europe. That would leave the UK outside the family of nations upholding universal human rights and would hugely diminish our reputation abroad. It would also widen the fracture in our own politics evidenced by last week’s elections. When the bill of rights commission set up by the coalition government in 2012 went to Scotland, Wales and Northern Ireland to find out what they thought of the HRA, they returned to London with a very blunt message ringing in their ears: the plan to repeal the HRA and adopt a British bill of rights is a ridiculous metropolitan Tory idea that should be put back in the box. A proposal that deprives people of their rights, divides nations abroad and divides nations at home is a grossly disproportionate reaction to one or two adverse rulings from Strasbourg. It also cuts across the basic fairness, dignity and equality that all nations committed to nearly 70 years ago. |