Repealing the Human Rights Act: pulling on a thread of the constitution

Britain’s new Conservative government has launched its term by aiming to repeal the Human Rights Act, which was brought in by Labour in 1998 to bring the European Convention on Human Rights into domestic UK law. The Act has largely been a success, enabling the courts to take more account of Convention rights in the cases before them and reducing the number of cases being taken to the Strasbourg court. However, controversial decisions such as Strasbourg’s judgment in support of prisoners’ voting rights and the long-standing line in the right-wing press that the Act is a “criminals’ charter” has made the ECHR, once backed by Churchill and imprinted with British influence, something of a bête noire of the Tories.

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.

Federalism in the UK?: the Flexible Constitution warped

The referendum in Scotland was a great example of democracy, with high levels of engagement over a fundamental issue dealt with peacefully (though I suspect that if the result had been a Yes for independence, the negotiations for separation would have been less civil). The morning after the result, UK Prime Minister David Cameron said that Scotland would get the extra powers the pro-Union parties promised, but that devolutionary measures for England would have to be brought in in tandem. Linking the two means that great constitutional change has to be brought about in the UK before the next election, which is a mind-boggling task.

Given the short time frame, the Conservatives were quick to promote their idea of "English votes for English laws". Since the Scottish Parliament will have wide powers on most domestic matters, such as health and education, the argument is that Scottish MPs in the UK Parliament should not be allowed to vote on draft laws that only affect England. It's a neat idea as, the Tories argue, it can be brought in quickly and without the need for more politicians, as the English members of the current UK Parliament can simply sit as the English Parliament for a day or two each week. However, the Labour Party, traditionally strong in Scotland, is suspicious that this is simply a plan to rob the Labour Party of a workable majority after the next general election if it wins by essentially disqualifying their Scottish MPs (the Conservatives are a very minor party in Scotland).

It's not just the worrying party-political nature of the proposal that's concerning, but there are other problems that carving a part-time English Parliament out of the UK Parliament would have.

First of all, it causes a problem with how the government is to be formed, since ministers are generally drawn from MPs (some ministers are brought into Parliament by being made Life Peers who sit in the unelected House of Lords). If the ministers of Education and Health work on an England-only basis, then there will be pressure for those ministers to only be drawn from English MPs. And these ministers would be accountable to the English Parliament within the UK Parliament, while other ministers would be responsible to the UK Parliament as a whole. There would need to be a "double majority" of English and UK-wide MPs to form a stable government. It seems odd that a Tory party that largely opposed the Alternative Vote on the grounds that First Past the Post produces (generally) stable governments, now want to introduce a divided government with loyalties to a divided Parliament.

It's not just that it would complicate the government, but that no real thought has gone into the powers and policies that need to be looked at from a UK-wide and a national or regional level. The NHS - the National Health Service - is supposed to be a UK-wide institution, and as England makes up the vast majority of the population and spending power within this, English decisions would have a bigger impact on the other parts of the UK without the Scottish, Welsh or Northern Irish having much of a say. If certain policy decisions on health were located at national and UK level this would be less of a problem, but it's a tougher question for taxation and spending if there isn't a divide between different pots of money (UK and English), which would cause plenty of government divides and tensions in itself. (Just as people have drawn parallels between the unionist case for Scotland staying in the UK and the UK's in-or-out debate on the EU, maybe we'll see some more being drawn if and when it's argued that the Eurzone MEPs should be the only ones permitted to vote on Eurozone matters).

Ironically for a proposal supposedly designed to strengthen the union by giving the English more powers, having a UK Parliament where large parts of the UK government are English-only would be a great symbol of English dominance within the union that won't help its image in the Celtic nations. Surely for devolution - or a federal arrangement - to work and really mean something, there should be a Union Parliament and government at one level, and state governments below it, with a thought-out division of responsibilities and powers?

Sadly in comparison to the Scottish referendum, little debate engaging civil society is taking place as Westminster MPs try to rush this to their Scottish timetable (to get Scottish devolution measures passed before the general election in May). Would the simple division of MPs into English MPs and the rest actually mean much more democracy for England? Hardly. There is no opportunity to explore the idea of English regions as states, empowering, say Yorkshire (which is about the same population size as Scotland), to make its owns decisions and rebalancing England as a whole away from the over-dominant South East and London. Regional parliaments may not be a hot topic in England at the moment, but the fact that there is no debate or discussion over it at all when English devolution is supposedly the topic is damning in itself.

The British constitution's strength is said to be its flexibility. Unfortunately this is a clear example of how such flexibility works in practice: (part of) the Westminster elite spots a potential constitutional issue, tries to quickly turn it to its advantage and shape reform according to its own interests, while closing out proper public debate. It's hard to see how this can result in good decision-making, never mind good constitutional reform, for either England or the whole UK - and harder to imagine that these decisions are really being taken in the best interests of the citizens in whose name they are being made.

Independence or Devolution?

Last week saw the first TV debate between Scottish First Minister Alex Salmond and Alistair Darling the leader of the pro-Union "Better Together" campaign in the run up to the referendum on Scottish independence. Salmond is known across the UK for being a shrewd politician and a great debater, whereas Darling, a former Chancellor, is seen as competent and dependable, but dull. So much was made of Darling's victory in the debate (according to the snap polls immediately afterwards), particularly with the Yes (pro-independence) side behind in the polls.

Darling won the debate largely because the independence campaign has stuck to a highly optimistic view of the transition to independence, so in a debate it comes across as if the Yes side aren't taking the concerns of the No side seriously (hardly a way to woo swing voters with similar concerns). And there are issues with the transition to independence: EU membership won't be automatic (though it hardly be a complicated process for a country that already complies with EU law), and creating a suitable currency union between Scotland and the rest of the UK will doubtless be a complicated task.

But the real question is whether Scotland is not only different to the rest of the UK (read: England), but different enough that full independence is necessary to properly express that difference. From education to healthcare, there's no denying that Scotland is more social democratic than the rest of the UK (though it may just be more in line with the rest of Europe than England), and the political gulf between Edinburgh and London can be seen in the lack of Tories North of the border. But does devolution (with more powers to be shifted from London to Edinburgh in the event of a No vote) not enable Scotland to give voice to those politics while also retaining the benefits of union? The fact that the independence plan would keep so much of the union, from the monarch to the currency, suggests that the "best of both worlds" argument might have some attraction yet.

Looking at how the debate has played in Westminster and how the main UK parties have dealt with it, I can see it only being a matter of time before Scotland leaves. More devolution to Scotland is great, but the asymmetric nature of the union is a big problem for its future survival. Without any debate about what the union should be about and how it should work together apart from occasional devolution to the constituent nations, the union ends up on the wrong side of history. The momentum will stay with Scotland's drift towards independence, and the central institutions of the UK will not be reformed to reflect how the UK is developing. The UK needs to stop acting like a unitary state - really, the UK should take a federal approach to empower English regions as well as Scotland, Wales and Northern Ireland, re-balancing the UK away from London and the South-East and making devolution and union part of the same political narrative.

That's not going to happen. England famously doesn't like to debate constitutional reform, trusting in a flexible, "unwritten" constitution (which underestimates the danger of bumbling through decisions and undervalues the virtue of democratically facing up to such decisions rather than leaving them to a cosy elite to sort out amongst themselves). A political atmosphere where the union is increasingly an English space that the Celtic fringe gets exemptions from is not a union of equals and this leaves very little in the way of common institutions or political narrative to justify sticking together.

Scotland's social democratic vision is a very attractive one - it's one that it can achieve as an independent country, and probably also as part of the UK. Independence will give Scotland something more indefinable than what Salmond promises: the freedom to reflect on, debate and shape itself. The real weakness of the UK may not be that it isn't giving Scotland the tools that it needs to forge its own path while staying inside the union, it's that it struggles to be about more than the London-centric Westminster bubble.