Human Rights Act abolition will be no 'quick win' for the Tories
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Version 0 of 1. Tory party media spinners have portrayed the abolition of the Human Rights Act as a dramatic “quick win” for the incoming majority Conservative government, newly liberated from their Liberal Democrat coalition partners. Related: Eurosceptic David Davis could oppose government on human rights reform The repeal of the HRA and its replacement with a British bill of rights – or at least a promise to produce a draft bill proposing that – is said to be a key part of David Cameron’s 100-day policy offensive to prove that he is getting down to business. The problem is that while scrapping the Human Rights Act has been a Tory rallying call ever since it was passed in 1998, there is precious little agreement over how to do it. As Theresa May – who once based her argument for abolition on a case involving a pet – might put it, there is more than one way to skin a Bolivian’s cat. Indeed, there are as many different approaches as to how this should be done as there are barristers on the Tory benches. The Conservative manifesto makes it sound relatively straightforward. It promises that replacing the HRA with a British bill of rights “will break the formal link between British courts and the European court of human rights, and make our own supreme court the ultimate arbiter of human rights matters in the UK”. This might well be regarded as the minimal reform option and which could leave the UK’s supreme court in a similar position to, for example, the German constitutional court, which already has the last word in human rights cases instead of Strasbourg. Related: The arguments against the Human Rights Act are coming. They will be false | Keir Starmer However, there are many in the Conservative party who would like to go much, much further and adopt a far more radical solution. The home secretary, for example, has made clear her desire to see Britain’s complete withdrawal from the European convention on human rights, despite the fact that this could lead to expulsion from the Council of Europe, and possibly the European Union, as well as other fearful international consequences. Alarmingly, Cameron has chosen to put Dominic Raab, a maximalistConservative libertarian, in charge of the detailed implementation of the legislation and the Ministry of Justice. Raab, who has fought identity cards and digital surveillance, nevertheless has been one of the most trenchant Tory critics of the European court on human rights and argued that the “creep of its case law” represents as dangerous a threat as Labour’s proposal to introduce 42-days detention without charge. Raab has long argued that it is possible to disapply Strasbourg case law and remain within the ECHR and the Council of Europe. But there are two ways this could be done. One would be to incorporate the whole of the ECHR into British law and then decide later which bits you don’t like so much and which bits you want to add to. The other, more complicated way, would be to repeal the Human Rights Act and replace it with a completely newly drafted British bill of rights that tried to do the job from first principles. Related: What is the European convention on human rights? Little is known of Michael Gove’s current attitude to these complex issues. In his 2006 book, Celsius 7/7, he voiced doubts about the usefulness of the current state of the law in tackling Islamist jihadis: “The problems we face are compounded by the dogged refusal of too many in the legal establishment to put the defence of our civilisation ahead of the defence of the traditions with which their profession has grown comfortable,” he wrote. Before the election, David Cameron is said to have cooled on the idea of human rights repeal on the grounds that the more he looked into it, the more complicated the question became. It will now be up to him and Gove to choose one of the many options for reform, and once they have made their decision drive it through parliament with an iron political will. It will take time. There will be many obstacles on the way. On his own backbenches sit his sacked former lord chancellor, Ken Clarke, and dismissed attorney general, Dominic Grieve, ready and willing to rally the first major revolt of the new government. The House of Lords, where the new government no longer has a working majority, will see full-scale opposition from the 100-plus Lib Dem peers and the massed ranks of the former senior judiciary. Scotland, Northern Ireland and Wales are already limbering up to raise their own objections, not least to the future of the Good Friday agreement in Belfast. The ramifications in Europe will play into Cameron’s main attempt to renegotiate the terms of UK membership. If Cameron manages to negotiate this veritable political and legal minefield it will be as unexpected as his election victory. What it is not going to be is a “quick win”. |