Human rights reform… Labour reveals its hand
5 June 2014
make sure it is clear to the judges what Parliament intended by Section 2 – that they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing.
Section 2 of the Human Rights Act says that any judge deciding a question involving human rights “must take into account“, amongst other things, any judgment of the European Court of Human Rights. This has been a controversial provision as on its face it only requires judges to pay attention to, not follow, Strasbourg’s judgments. But the judiciary have often gone further than they a required to – see Rosalind English’s summary of the recent public spat between the judges.
If implemented, Labour’s embryonic proposal is unlikely to do anything to resolve that debate, as judges will do what they are entitled to do – ignore the guidance and apply the Human Rights Act. But if Labour’s proposal is, as I suspect it is, an exercise in political kite flying, then it may signal something more significant.
To explain, Labour know that human rights are likely to be an important issue in the May 2015 General Election. The Conservatives are yet to reveal their hand, although the Justice Secretary has promised plans for “broad-ranging change” of human rights laws in its manifesto for the 2015 election to “curtail to role of the [European Court of Human Rights] in the UK”.
Labour will not want to appear powerless in the face of people’s concerns over human rights. And whether or not they are justified, anti-human rights newspaper stories mean those concerns are multiplying. So they are following Harvey Milk’s advice: “say into that bullhorn what they’re all feeling“. Sensibly, in my view, they want to be seen critical friends rather than HRA fanboys.
The significance of the article being in the anti-Human Rights Act Telegraph cannot be understated. And the Daily Mail have already said Khan’s piece is a major concession, which was probably the signal Labour wanted to send.
The dangers of this strategy is that at some point Labour will have to match the rhetoric with actual policy, and “guidance” isn’t going to cut it. Khan says Labour “don’t rule out re-legislating to make things doubly clear if matters don’t improve“. But they will know that re-legilslating, that is amending the Human Rights Act, will bring with it the risk of calls for major changes which will be difficult to ignore in the current climate.
I will leave the detailed commentary to the excellent posts by Dr Mark Elliott and Professor David Mead, both of whom explain how the political debate over human rights has become infused with misunderstanding and misrepresentation. Professor Mead also gives a teaser as to his incoming empirical research on reporting of human rights cases in the media, which should be a valuable contribution to this debate.
If we are going to have an effective separation of powers system, with the judiciary holding the executive to account through some sort of constitutional statute such as the Human Rights Act, that will only work if there is not a constant threat of those powers being taken away. Politicians need to decide roughly how they want the system to work and then support it, whilst criticising particular judgments if they disagree with them. Professor Mead says “the “real” battle of the HRA is between our domestic courts and our domestic Parliament – something this proposal simply ignores, constructing the battlefield and combatants elsewhere“. I agree.
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Politicians have to respond to concerns expressed by voters whose opinions are shaped by those who would seek to convince the public that they are victims rather than beneficiaries. Those who read the law reports rather than the tabloids have a rather different opinion of the ‘radical’ changes brought about by the Human Rights Act.
We have already seen how the courts routinely and quite properly ignore Ministerial ‘advice’. At best, all Labour will attempt with the Act they were responsible for introducing in the first place, is the same cosmetic exercise they carried out followed the last media-driven ‘moral panic’ of ‘self-defence’ for home owners with the Government’s response under the Criminal Justice and Immigration Act 2008. There, the extent of the ‘reforms’ amounted to nothing more than a codification of existing case law which amounted to no change at all even though the general public actually believed the law had been strengthened in their favour! It was an extremely effective ‘con-trick’ on the part of the then Home Secretary – Jack Straw and swallowed whole by the public.
In other words, Ministerial advice if given, will be ignored by the courts as Minister know very well that it will be. Legislative change, if any, will amount to nothing more substantive than a codification or reiteration of what the courts are already putting into practice.
Those who read the Human Rights Act and the case law that interprets it will be struck by the subtle way in which, like politicians generally, it promised more than it actually delivers and the instances in which the higher courts find that such rights have ‘not been engaged’. Perhaps its critics might look to the total number of cases in which the House of Lords, and latterly the Supreme Court have made declarations of incompatibility under section 4 and compare those against the remedial action taken by the Government under section 10 – not that many is there?!
The Human Right Act will remain unchanged. The judiciary will carry on much as they do now while the politicians and tabloid newspapers will carry on with what they are best at – manipulating public ignorance!
Analogy: I helped myself to a bunch of high value banknotes when I was in the bank, but it’s all right because I was paying attention to, though not following, the criminal law.
Adam, a typically excellent post and you are surely right about the ‘kite-flying’ here. Sadiq Khan can hardly be oblivious to the fact that executive ‘guidance’ to the judiciary is a non-starter: 400 years and a civil war too late, etc
But there has to be a corollary to your final paragraph. For separation of powers to work, there must also be a limit to judicial trespassing on the executive’s turf. And the clear trend over many years has been to expand, claim by claim, the scope of judicial review, particularly in the human rights context.
Inconvenient as it may seem, there is an increasing public dissatisfaction with the current ambit of human rights jurisprudence in particular – hence Sadiq Khan’s article. And blaming ‘the right wing press’, at a time of ever-dwindling newspaper circulation, just isn’t a good enough explanation for that. In fact it’s a head in the sand explanation from people who are smart enough to know better.
The reality is that the ‘judicialisation’ of what were historically broad questions of social and economic policy (to be determined by the democratically- elected government of the day) just seems – how can I put it – undemocratic… and the public is getting increasingly wise to this. Judges don’t always know best – and nor should we expect them to: to paraphrase Sumption, the absolutism of legal rulings is a poor tool for balancing opposing interests and public sentiments.
Cases like Poundland and Serdar Mohammed are doing more harm to human rights and judicial review than any number of shrill editorials by Dacre or Littlejohn. The analogies now drawn between, for example, conditional benefits for jobseekers and slave labour are beyond meretricious and are inconceivably remote from the consensus on which the Convention was founded. The use of the courts by ‘activist’ lawyers to hamstring the conduct of a military campaign of which they disapprove is a sure fire way to make the public elide law with politics – and the law will suffer accordingly.
In the UK today, the greatest threat to human rights isn’t a wicked Tory government, it’s an expansionist Human Rights industry that is steadily corroding public belief in (and engagement with) genuine human rights issues, like freedom of the press or secret justice. When human rights become a mere plaything for clever lawyers, everybody loses: and we’re already some way down that road: viz the rise of UKIP’s ‘flat earth’ politics, etc.
I don’t want my judges to be ‘guided’ by Ministers: but I didn’t vote for them to run the country either. It’s a matter of taste and politics whether you prefer Sadiq Khan’s blandishments or Chris Grayling’s Year Zero-ism (sorry, ‘bold reform agenda’): but change is coming one way or another.