The future of the Human Rights Act, a reminder

22 September 2010 by

Lord McNally

Lord McNally, the minister of state for justice, has told the Liberal Democrat Party conference that the Justice Ministry is looking at the Human Rights Act, not to “see how we can diminish it”, but so it can be “better understood and appreciated.”

There will be, he said, “no retreat” over human rights. His comments have been reported as “likely to anger” backbench Tory MPs, who have “long criticised the HRA”.

In reality the reports may cause anger, but they will come as absolutely no surprise. Whilst it is true that the Conservatives pledged in their election manifesto to repeal the act, a lot has happened since then.

First, and most importantly, Ken Clarke was the surprise choice for  Justice Secretary. Shortly afterwards, he told the BBC that we are not committed to leaving the European Convention on Human Rights, we have committed ourselves to a British Human Rights Act.” Mr Clarke has never been shy to express his opposition to repeal of the HRA and replacement with a bill of rights. When David Cameron announced the plan in 2006, Clarke said the party leader would have difficulty finding any lawyers to agree with him. His Ministry of Justice has been subsequently called a “nest of liberals“.

Later in May came the coalition’s Programme for Government, in which it pledged to “investigate the creation of a British Bill of Rights” that “incorporates and builds on all our obligations under the European Convention on Human Rights“. Moreover, it will ensure “that these rights continue to be enshrined in British law“, whilst protecting and extending British liberties. Finally, the government pledges to  “promote a better understanding of the true scope of these obligations and liberties“. Just as Lord McNally said.

As I suggested at the time, rather than seeking to repeal or diminish the HRA – and more particularly, the UK’s commitment to the European Convention on Human Rights – the coalition government appears to be investigating a Human Rights Act Plus. This would ensure the existing rights, whilst increasing “British liberties”, whatever they turn out to be – a right to fish and chips? The government will also be aware that there would be significant legal problems associated with reducing any of the protections guaranteed under the Convention.

And, in any event, even if the HRA were to be repealed, the UK’s two most senior judges have recently said that it would probably make no difference. The President of the Supreme Court has said that if Parliament chose to repeal the HRA, the courts may choose to enforce it anyway. He argued that the HRA may have attained in law the status of “constitutional statutes” which are effectively impossible to repeal. Lord Hope, his deputy, agrees that repealing the HRA would make “very little difference to the way such rights are enforced in our courts.”

So, however angry Lord McNally’s comments may make Tory backbenchers, it is unlikely they were surprised unless they had failed to read their own coalition programme. And, thankfully, the HRA appears to be safe for now.

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