Implications of repealing the Human Rights Act

by George Hatjoullis

There is an excellent article in the FT (Why repealing the Human Rights Act is not going to be easy | David Allen Green) that clarifies this issue rather well. However, as the FT is a subscription service and copyright prohibits my re-blogging the article I shall endeavour to give a rendition here plus the usual gestaltz spin.

The Human Rights Act codified the European Convention on Human Rights into UK law. It enables UK citizens to access their (qualified) convention rights directly in UK courts rather than having to petition the European Court of Human Rights in Strasbourg. The repeal does not withdraw the UK from the convention and it is still possible to petition the ECHR. The act came into effect in 1998 and there was no noticeable lack of human rights in the UK prior to this date! The intention is to simultaneously replace the act with a another piece of legislation detailing a Bill of Rights for UK citizens. Unless the UK plans to withdraw from the European Convention, which it apparently does not, this bill of rights must be consistent with the convention or else it will be challenged at the ECHR in Strasbourg. So what exactly is the point of all this?

David Allen Green suggests it is a political ploy to demonstrate how this government is getting down to business. It probably sounds like ‘taking back powers from Brussels’, which is odd because the ECHR is not an EU institution, is based in Strasbourg and the UK is a founding member. However, this point may not be brought out by The Sun and may be a fine distinction for the typical Sun reader. So it is good politics if a bit pointless. DAG points out that it may also be problematic.

Apparently constitutional practice, in the shape of something called the Sewel Convention, requires that repeal and replacement of this act will need the Scottish parliament to approve. The SNP has already indicated that it will not approve.No doubt constitutional law will now become front page news as this debate takes place but it is by no means certain that the government will win. Moreover, even if it does win it will take time so there is no quick victory here and it will emphasise the Scotland-England divide. This is an odd gambit for party committed to the UK Union. The second, obstacle is the Good Friday agreement in Northern Ireland which may need to be rewritten if there are changes to how the ECHR is implemented in the UK. No politician in his/her right mind would open this can of worms. Finally, there is the House of Lords. The CP does not have a majority and the Lords are likely to take all the time allowed to scrutinise the terms of any replacement legislation. There is no quick victory for the CP here either. There is at best a long drawn out battle, acrimony and possibly even defeat. Seems a risky strategy and hardly worth the effort.

There is something quite odd about the CP strategy. It purports to favour the Union. Yet the use of the glib “English laws for English people’ headline, though it may have helped win the election, drives a wedge in the Union. Such a slogan is music to the ears of the nationalists. Creating constitutional conflict with the Scots over the Human Rights Act again plays into the hands of the nationalists. The EU referendum is another point of conflict with the nationalists. The SNP want any exit decision to be subject to the approval of all member states of the UK Union, and the Scots will not approve it. The UK Union is a car crash in the process of happening and will leave Conservative Party severely damaged if not irrevocably split. Winning this election may have been the worst outcome for the Tories in the long run.