There was some surprise at the lack of detail over human rights in Justice Secretary Chris Grayling and Home Secretary Theresa May’s speeches yesterday. Now, David Cameron has revealed all. Or at least, he has revealed some. Here is what we learned.
1. The Conservative Party will not be leaving the European Convention on Human Rights if it obtains a majority in 2015-2020.
This is the really important bit, as everyone knew the longstanding Tory policy of repealing the Human Rights Act and replacing it with a Bill of Rights (see below) would be maintained. There has been plenty of noise from the Eurosceptic right of the party in relation to the ECHR – both Grayling and May have consistently said leaving was a possibility. But surely now it is not. Or at least, if it intends to do so it would be very odd for that major policy not to have been mentioned at the Conference.
2. Saner heads have prevailed over the ECHR
Following on from (1), despite the rhetoric from Justice and the Home Office (both departments which, as it happens, are on the other side of most human rights claims), the reality is that criticism of the ECHR has been hugely overblown. The court delivers around 10 judgments against the UK every year out of a total of around 1,500 cases brought against the UK. Some of those judgments have been controversial: prisoner votes, Abu Qatada and whole life orders have somewhat obsessed the right wing press over the past couple of years. But the real effect of those judgments is minimal. Strasbourg has said it won’t order damages or costs for prisoners denied the vote, Abu Qatada was eventually sent back to Jordan as the UK wanted (albeit after a long delay – and he was subsequently acquitted) and the Court of Appeal came up with a clever fudge to allow UK judges to impose whole life orders in any event.
Despite the sacking of Dominic Grieve, Ken Clarke and William Hague, supposedly to make way for some kind of incoherent (Grieve’s word) democratic override policy, that now appears to have been scrapped. Rightly so. It would have backfired. The problem with over inflating criticism of Strasbourg is that any policy responding to that disproportionate criticism will itself be disproportionate. I was impressed by Daniel Finkelstein’s recent piece on human rights in The Times, being the first positive human rights pronouncement from a leading Tory in years. My reading of the content and timing was that there had been a genuine shift within influential figures in the party and I think that was probably a correct reading.
3. Here comes the British+NI Bill of Rights!
Of course, it can’t be a British Bill of Rights as it must involve Northern Ireland (remember the Good Friday Agreement?). But UK Bill of Rights doesn’t sounds as fish-and-chips-Magna-Carta-our-boys-on-VE-Day does it? Anyway, it will be fascinating to see how this document will be produced. There is a strong argument that the Conservative Party should not impose a bill of rights without agreement from the other parties – otherwise, it is really a Conservative Bill o Rights. Of course that would please the party supporters, and potentially stop claims from immigrants, prisoners etc. but a bill of right imposed by a majority seems to miss the point slightly. Remember, the Human Rights Act (or “Labour’s” Human Rights Act as Cameron described it) had cross-party support.
There is currently a strong rumour that Chris Grayling will provide more detail on Friday – but any first drafts of the bill should be approached cautiously – given how much is at stake, it must be assumed that a Conservative Party with a narrow majority would find it difficult to pass a seriously partisan bill.
Another issue which will be important in a Bill of Rights would be the influence of European Court of Human Rights judgments on our domestic judges. The Human Rights Act famously (OK, in my circles anyway) requires judges to “take into account” Strasbourg judgments. It seems likely that an amended/repealed HRA would water this down, although unless it told judges not to take Strasbourg decisions into account, the reality is that they will continue to do so. Contrary to the propaganda, many Strasbourg judgments are perfectly sensible and that, not section 2 of the HRA, is why our judges choose to follow them.
I suppose there is also a possibility that Grayling’s announcement will include some sort of democratic override as part of the bill of rights. How that would operate in practice is anyone’s guess – Parliament can already ignore ECtHR judgments if it wants to, as it is doing with prisoner votes. If such a policy was announced after the conference, not during it, that would be an indication of how concerned the party was of exposing it to scrutiny.
4. There is a non-sequitur at the centre of this policy
Cameron said this:
We do not require instruction on this from judges in Strasbourg. So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights…
What he is saying is that the answer to problematic judgments from the European Court of Human Rights, is repealing the HRA and substituting a bill of rights. But if we remain party to the ECHR (what Cameron called “the charter” – but we will let him off as he may have had one eye on this), Parliament is bound under international law to abide by its rulings. We might be able to tinker with British judges’ duties to have regard to the judgments, but that is a separate issue. As Carl Gardner eloquently put it, British judges have been perfectly willing to ignore Strasbourg when they want to.
I am not advocating ECHR withdrawal – as said above, my view is that criticism has been overstated. But it is time to be open with the British public about what being party to the ECHR means. It means our Parliament have to follow judgments. Not because some crazy Moldovian judge told us to, but because our country signed up to an international treaty. That treaty has lots of benefits – it raises human rights standards for hundreds of millions of people in states which need it a lot more than us – and few downsides. Politicians including the Prime Minister need to explain, as annoying and convoluted as it is, that our domestic arrangements are largely separate from that system.
As it happens, I agree with Carl entirely that the best answer to the Strasbourg question is a boring, long-term campaign to increase the influence of national parliaments using the legitimate mechanism of the treaty – which is working. It is sad that this government achieved some significant wins earlier on at the Brighton Conference but has so disassociated itself from the Ken Clarke period that it cannot say so. Ironically, the long-term-reform-from-within approach is precisely that which Cameron is advocating in relation to the European Union.
5. There will be champagne in Strasbourg tonight
Those at the Council of Europe and European Court of Human Rights well know that the UK leaving the ECHR or continuing to threaten withdrawal is greatly weakening the system. They will be extremely relieved to hear that a Conservative majority wouldn’t be a death knell for the 64-year-old convention which has done so much good for Europe.