Terror case reopens debate on repeal of Human Rights Act [updated]

19 May 2010 by Adam Wagner

Debate reopened

We posted this morning on the case of the “Pathway students”, in which two suspected terrorists used human rights law to avoid deportation due to fear of torture. Almost immediately after the decision was announced, the BBC reported that a “commission” is to be set up to address the future of the Human Rights Act. Has the case prompted a swift reconsideration of the Coalition’s position on human rights?

Probably not. It would appear that a commission to review the 1998 Act will be set up, as part of a wide raft of civil liberties reforms to be announced by Deputy Prime Minister Nick Clegg later today. However, the timing of the announcement alongside the terror decision is probably coincidental and the commission is likely to have been planned since last week’s Coalition agreement.

We noted last week in our review of the Con-Lib Coalition agreement that there was no mention of human rights in the text, which probably signified a disagreement between the two partners rather than an oversight. It would appear that the proposed “commission” on the future of the Human Rights Act is a compromise reached at the time of the agreement in order to resolve the diametrically opposed manifesto promises of the two parties, with the Conservatives promising to “Replace the Human Rights Act with a UK Bill of Rights“ and the Liberal Democrats to “Ensure that everyone has the same protections under the law by protecting the Human Rights Act.”

Mr Clegg is to announce a raft of reforms, most of which which were foreshadowed in the Coalition agreement. He told The Times this morning that today “he will set out how the State will shrink from people’s lives (no ID cards, curbs on personal details stored on government databases); how people will gain a more direct say in government (elected peers, voting reform, recalling misbehaving MPs); and “radical devolution” of power to voluntary groups and those other than the State to provide services.” He also said that “Any government would tamper with [the HRA] at its peril”.

What now?

Of course, a review of the Human Rights Act could lead to a few quite different outcomes. The most unlikely outcome would be that the Act would be scrapped outright and the UK returned to the position it was in before October 2000, where courts could take notice of human rights cases from the European Court of Human Rights but not apply them directly. The second possibility is that the Act would be repealed, and replaced with a ‘Bill of Rights‘, as the Conservatives have been promising albeit with little further detail. A third option would be a “Human Rights Act plus”, which would aim to recalibrate the rights and responsibilities set out in the current Act, which incorporates most of text of the European Convention on Human Rights, while keeping to the spirit of that Convention.

The third option is probably the most likely given the Liberal Democrats’ (in addition to the new Justice Secretary’s) opposition to repeal. However, this may lead to legal problems given that the UK is bound by European Law (seperately from the responsibilities it is placed under by the Human Rights Act) to the rights granted by the ECHR, and any substantive restriction of the rights due to new legislation could lead to compensation claims for breaches of rights in the European Court, as was the position pre-October 2000. That is not to say that a recalibration would have to weaken the protections; it could also be used to strengthen some of the rights, such as including a new “right to information“.

Human Rights Act Plus

As has been the case throughout this debate, supporters of the 1998 Act urge caution. Shami Chakrabarti, the Director of Liberty, has written in The Times that the Government should be very reluctant to tinker with the Human Rights Act, as “A retreat from human rights towards “citizens’ privileges” is the road to Guantánamo Bay. This is not the moment in our history to repeat such a misguided journey. I urge David Cameron and Nick Clegg away from that path — not because it’s unlawful, not because it would surely destroy their optimistic coalition. Because it’s wrong.”

We will follow the debate with interest. At present, however, it would appear that the review of the Human Rights Act, which at first seemed to have been kicked into the long grass by the new Coalition Government, is very much back on the agenda.

Read more

• Update 19/05/10 – The full text of Nick Clegg’s speech on political reform can be found here – Note that as was the case with the Coalition agreement, there is again no mention at all of human rights.
• Our previous posts on the Bill of Rights