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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