Five things we learned from Cameron’s human rights announcement

1 October 2014 by

9e422861-3131-40b3-a703-62426b2d1c9a-620x372There 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.

6 comments


  1. NAZI HUNTER says:

    Only Hitler would have an issue with the Human Rights act, only a total scum bag guilty of breaching Human Rights countless times and intends to break them further would dare suggest to ‘ditch them, if he ditches them then surly he will be guilty of ‘insighting hatred’ among the human race which is criminal under the terrorist act, further more he has just publically announced that he is in the process of ‘conspiring to hurt the masses’ both of which are an arrestable offence be it by a police officer or a citizen weather they have to use force or otherwise this is blatant ‘conspiracy to hurt the masses’ and a resisted ‘all persons arrest’ may end up with the evidence of said inspired hate depending on the condition of this little Hitler when police arrive to take him away before trial.

    NOW IS THE TIME TO OCCUPY LONDON FOLLOWING HONG KONG AND EVICT THIS SCUM RIDDEN GOVERNMENT TO PRISON, AS YOU HAVE A RIGHT TO ASSEMBLY AND THEY ARE CRIMINALS WITH MULTIPLE CRIMINAL CHARGES.

    Throw this little ponsy Hitler out of our country and back to Germany like his ancestors and dont stop their, throw our the other two leaders also breaching countless laws and rights knowing that they are RUSSIAN Communists, in what democracy is David Cameron, relative of the Queen dictating like Hitler when the Royal Family who have reigned for 150 years, massacred 50% of the UK on invasion, covered it up and also got away with FUNDING THE NAZIO PARTY and THEIR RELATIVE SERVING AS SS, have they not raped and used as a toilet the entire UK genetic line and now are funneling everything to the EU, THROW THIS SCUM OUT NOW.

  2. […] Cameron actually was reigned in by the sensible wing of his party in relation to it (see here, here and here, and you should also read this), but it is clear that this is something that worries […]

  3. Reblogged this on Murran Kerschensteiner and commented:
    The Conservatives’ full-voiced though half-hearted attack on Human Rights continues. David Cameron announced at his party’s conference that the UK won’t be leaving ECHR after all. This is contrary to what has been threatened by the Prime Minister as well as his Home Secretary Theresa May and Justice Secretary Chris Grayling. Nonetheless, his Cameron’s continued blaming of Britain’s ills on Strasbourg is wearing thin now, and damages not just the UK, but the ECtHR and Europe as a whole.

  4. Gavin Steele says:

    Adam, it’s all great… but please “non-sequitur” with a U!

    1. Adam Wagner says:

      Gavin, sincerest apologies.

  5. alrich says:

    I fear we have more to fear from the UK Bill of Rights than is suggested here. The version presented to parliament by Charlie Elphicke had rather disturbing elements wholly contrary to the rule of law – and he is working on the official Tory one.

    In particular it abolishes Art 13 of ECHR – the Article that gives “effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

    It allows denial of rights for those whose behaviour doesn’t come up to standards ie a judge shall (not “may”) “take into account all the facts and circumstances of the case, including the conduct of the person seeking to assert the UK right”.

    It even allows state bodies to get the law wrong as long as their mistaken interpretation was “reasonable”. “Reasonableness” pops up as a weasel word in various places. The “Bill of Rights” is studied in detail here: http://thinkinglegally.wordpress.com/2014/01/31/conservative-bill-of-rights-the-state-v-the-people/

    On the issue of getting opposition support for such a fundamental constitutional change, I suspect the Tories won’t be that bothered, falling back on the supremacy of Parliament. Yes, we know all laws can be repealed or amended by future parliaments but the new (Tory) Bill of Rights would be “embedded” not so constitutionally by the simple process of the Daily Mail/Express/Sun making life a misery for any party daring to propose changes on the basis of old-fashioned legalistic principles such as separation of powers or the rule of law.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: