The Conservatives and Human Rights: Are they Right?

In recent weeks the news has reported that the Conservative Party has pledged to reform human rights law if it wins the next election in 2015. Theresa May, the Home Secretary, has said that the Conservatives will scrap the Human Rights Act 1998 (HRA). Chris Grayling, the Justice Secretary and Lord Chancellor, has said that the UK will withdraw from the European Convention on Human Rights (ECHR) if it is necessary. The Conservatives say that it will allow the UK to make its own decisions about human rights, rather than being dictated to by the European Court of Human Rights.

So what exactly does all this mean? And are the Conservatives right to say that we must reform human rights law drastically?

The ECHR and the HRA

The ECHR (‘the Convention’) was produced by the Council of Europe in 1950 to set down common human rights so that the horrors of the Second World War could not be repeated. For the avoidance of doubt, the Council of Europe is not part of the European Union; it is an entirely separate body comprising 47 member states. Winston Churchill, a Conservative Prime Minister, was a driving force behind the creation of the Convention. The Convention was drafted in large part by David Maxwell Fyfe, a Conservative lawyer and politician. The UK was instrumental in the drafting of the Convention and was in fact the first country to sign it on the very first day it opened for signature: 3 September 1950.

The primary rights it guarantees to citizens are:

• the right to life (Article 2);
• the right not to be tortured or subjected to inhuman or degrading treatment (Article 3);
• the right not to be forced into slavery or servitude (Article 4);
• the right to liberty (Article 5);
• the right to a fair trial (Article 6);
• the right not to be criminalised for acts that were not criminal when they occurred (Article 7);
• the right to private and family life (Article 8);
• the right to freedom of thought, conscience and religion (Article 9);
• the right to freedom of expression (Article 10);
• the right to freedom of assembly and association (Article 11);
• the right to marry (Article 12); and
• the right to not be discriminated against in respect of the other Convention rights (Article 14).

Ultimately the Convention allowed an individual to complain to the European Court of Human Rights (again, this is not related at all to the European Union) if they believe their human rights have been breached by their own country. If the Court agrees it can order the country to rectify the problem. For example, if the UK routinely tortured people, an individual could complain to the Court and, if it finds there has been torture, it could order the UK to no longer breach this human right. The rights could not, however, be enforced in this country. Although we had signed the Convention it was not actually part of our domestic law. British courts could not therefore enforce the rights.

In 1997, the Labour Government introduced the Human Rights Bill into Parliament which subsequently became the Human Rights Act 1998. The Act simply brought the Convention rights into our domestic law so that British courts could enforce the rights directly. An individual can complain to a British court that a public body had breached their human rights. If the court agrees it can, to put it simply, declare that the public body has acted unlawfully. If an individual feels that the British courts have got it wrong they can still apply to the European Court in Strasbourg. If the European Court disagrees with the British courts then the decision of the European Court is final because the UK has agreed not to breach human rights as interpreted by the European Court.

The Conservatives and Human Rights

In some cases the European Court has made decisions that the Conservatives disagree with especially. For example, the European Court has said we must give prisoners the right to vote (Hirst v United Kingdom (2005)) and we cannot deport dangerous terrorists and terror suspects if they are likely to be tortured in their own country or placed on trial where evidence obtained by torture will be used (Othman v United Kingdom (2012) – the Abu Qatada case. You can read here for more information on this case). In both these cases the British courts had said there were no breaches of human rights. The European Court disagreed and its decision was binding.

The Conservatives do not believe that the UK should have to listen to the Strasbourg Court, so it plans to scrap the HRA. If necessary, they have said they would withdraw the UK from the ECHR itself, which would mean leaving the Council of Europe.

So what implications would this have? Firstly, scrapping the HRA alone would have little effect. It would simply stop human rights claims being brought in the UK; it would not stop individuals complaining to the Strasbourg court, whose decisions would remain binding. The only effective way to stop the Strasbourg court being the final source of authority would be to withdraw from the ECHR and leave the Council of Europe (you cannot be a member if you are not signed up to the Convention).

So should we withdraw from the ECHR? In my opinion we should not, for six reasons.

Firstly, the reality is that leaving the Convention would have little practical effect. Most of the rights in the Convention have their roots in English law. English law has a proud tradition of protecting human rights and most of the convention rights would still be protected by British courts even in the absence of the Convention.

Secondly, and related to the first point, British courts would still likely look to the decisions of the European Court when deciding about human rights because it is a high authority on human rights. The influence of the Strasbourg court would not just disappear.

Thirdly, the Strasbourg court does simply ignore the views of the UK. It has occasionally accepted that it has made an incorrect decision because it did not sufficiently understand our law. This was seen recently in a case concerning hearsay evidence (Al-Khawaja v United Kingdom (2011)). The court is willing to engage in a dialogue with the British courts to ensure the correct decision is reached.

Fourthly, the majority of people agree that the Strasbourg court makes the right decisions almost always, even if they seem to protect an unpleasant minority of people in society. It just so happens that the human rights of unpleasant groups are breached more often and so they have a need to enforce them. And that is a key point. Human rights protect everyone regardless of who they are. They belong to everyone and are not subject to popular opinion.

Fifthly, and related to the fourth point, although British law would protect human rights to an extent, the ECHR remains the strongest source of human rights. If we ask ourselves, honestly, which of those rights would we be content to lose, what would the answer be? I suggest none.

Finally, and importantly, to withdraw from the ECHR would very badly affect the reputation of the UK. The UK is rightly recognised as a beacon of justice and fairness. That reputation is also economically beneficial to the UK, since foreign litigants choose British courts to decide their disagreements, at great profit to the UK economy. Leaving the ECHR would damage our reputation enormously and damage our fragile economy.

Conclusion

It appears that the Conservative party wildly misunderstands human rights law and the damaging effect it would have to withdraw from the ECHR. The UK has been at the forefront of human rights from as early as the Magna Carta in 1215. We should continue to be at the forefront in the future.

What are your thoughts?