So the Tory attack on the HRA isn’t a surprise – it was in
their manifesto for this election, and it has long been a proclaimed goal of
the party. In its place is supposed to be a “British Bill of Rights”, but it’s
not clear what the difference will be. Already under the HRA, judges can only
interpret laws so that they are in line with human rights, but they cannot
overturn laws passed by the UK Parliament. If Parliament passes a law that
breaches human rights, then all the courts can do is issue a declaration of incompatibility,
referring the issue back to Parliament. This might seem odd to those from
countries with constitutions that restrain the legislature from breaching
people’s rights – and indeed, the devolved administrations in Scotland and
Northern Ireland are prohibited from doing so and can have their Acts struck
down by the courts – but the HRA is designed to preserve Parliamentary
sovereignty. In addition, the UK courts only have to “take account” of the
jurisprudence of the Strasbourg court, so making the European Court’s decisions
less binding is not really the issue that some of the Act’s opponents make it
out to be. And in the end, of course, the Strasbourg court is the court of
final appeal on human rights matters in Europe. That’s simply a function of
being a member of a court – that’s what it’s for – so fiddling with domestic
law isn’t going to change that.
However, former judge Lord Bingham’s question of what rights people want to remove is just one of the challenges the Tory plan faces. It
turns out that the Human Rights Act is linked at a fundamental level to the
devolved institutions. It’s built into the local constitutions of Scotland and
Northern Ireland and there is no desire for repeal there. Scotland’s
representation in Westminster is now dominated by the fiercely anti-Tory Scottish
Nationalist Party, which opposes repeal, and the Human Rights Act is intimately
bound up in the Good Friday Agreement that brought an end to the Troubles in
Northern Ireland. The Good Friday Agreement is not just the basis of Northern
Ireland's peace process government, but a treaty between the UK and Ireland that
has been deposited with the UN. Now the Irish government is finding that not
only does it have to worry about a potential Brexit, but also the potential
unravelling of peace in Northern Ireland.
A possible solution to this, repealing the HRA for England
but leaving it in place in Scotland, Northern Ireland and Wales, but that
immediately makes the exercise ridiculous. How can you have two sets of
fundamental human rights across the same state? Are people deserving of more or
fewer rights depending on what side of the border they’re on?
It’s hard to imagine anything more fundamental than the
rights of people, and you would think that any changes would be a matter that
should be made with cross-party consensus and put to the people in a
referendum. But here it looks like a party political wheeze aimed at throwing
red meat to the Conservative’s Euroskpetic backbenchers. Ironically, here too
the government could run into difficulties as some Tory backbenchers may rebel
over the plan to repeal. Normally it’s the Euroskeptics who rebel frequently
and drag their party further to the right, but with a majority of just 12, it wouldn’t
take many MPs to blow the government off course, and MPs like David Davis (who
resigned and stood again in his constituency to highlight his opposition to the
then Labour government’s terrorism legislation) could be a real headache for
Cameron. The opposition is likely to almost completely united against repeal,
so every Conservative vote counts.
Euroskeptic Conservatives may imagine that repealing the
Human Rights Act is a great act of freeing the UK from European courts, but it
will soon become apparent that repeal threatens to tear at the UK’s
constitutional fabric.
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