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.
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?
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