Following reports of the Human Rights Act’s latest stay of execution, it is now a good time to take stock of the twists and turns of recent years and try and predict what the future is likely to hold for this much maligned legislation.
In the beginning
Starting at (nearly) the beginning, the European Convention on Human Rights is an international treaty drafted in the aftermath of the horrors of the Second World War. It provides a set of basic rights and freedoms to individuals and has been in force since the early 1950s and, by signing up to the Convention, the UK agrees to secure the rights and freedoms set out in the Convention to everyone within our jurisdiction.
A court, the European Court of Human Rights based in Strasbourg, was set up to interpret and ensure compliance with these rights. Since the 1960s, individuals in the UK have been able to pursue complaints against the UK for breach of their Convention rights at the Court in Strasbourg if legal proceedings in the UK failed to satisfactorily address the matter. Any judgment by the Court did not in itself change the law in the UK. However, as part of signing up to the Convention, the UK is then required to take the necessary action to rectify any breach found against it by the Court.
1990’s - Blair and the HRA
Fast forward to the late 1990s. The newly elected Labour Government passed the Human Rights Act (HRA). In simple terms, the HRA incorporates the rights set out in the Convention into UK law. It allowed, for the first time, individuals to challenge the failure of public bodies to uphold their human rights in domestic courts in the UK rather than having to go all the way to Strasbourg. In a sense, this change therefore did not really give anyone in the UK any new rights but simply made it easier to enforce existing rights.
2005 - Cameron and the coalition
After David Cameron became Tory leader in 2005, ‘Labour’s’ Human Rights Act (HRA) (The Conservatives never refer to it being ‘Labour’s’ NHS Act 1948 or Equal Pay Act 1970) started to come under serious attack.
To almost orgiastic acclaim from both the party faithful and usual suspects amongst the Eurosceptic right wing media, a succession of high ranking Conservative politicians started dismissing the HRA as being political correctness gone mad, the source of pretty much everything that was wrong with our society and promised to replace it with a ‘British’ Bill of Rights.
Even then, a number of wily old heads such a Lord Tebbit, not known for his liberal tendencies, warned that, as long as we remained signed up to the Convention, repealing the HRA would make limited difference.
Nonetheless scrapping the HRA and replacing it with a British Bill of Rights was part of the Tory manifesto in 2010.
Unfortunately (for them at least), following the May 2010 General Election, the lack of an overall majority and the need to placate their more HRA-friendly Lib Dem coalition partners meant that nothing could be done.
2014 - Manifesto time
We now move to 2014. With half an eye of the forthcoming General Election, the Prime Minister again promised to scrap the HRA to predictable acclaim at the Tory Party Conference in Autumn 2014.
The Conservatives then published a legally incoherent and widely ridiculed paper in December 2014, euphemistically entitled ‘Protecting Human Rights in the UK’ that repeated their intention to scrap the HRA and replace it with a British Bill of Rights.
The paper included a pretty much unveiled threat that the UK would withdraw from the European Convention on Human Rights if the Court didn’t agree to allow the UK to ignore judgements against it that it didn’t agree with. An impossible request given that it defeats the whole purpose of signing up to a Convention and having a Court to adjudicate on disputes.
These proposals were duly included in the Conservatives’ manifesto for the May 2015 General Election. However muddled these proposals were, they undoubtedly served a useful purpose in allowing the Conservative Party not to be outflanked by UKIP as being weak on the issue of letting pesky foreigners tell us what to do.
2015 - A Conservative Government
Returned to power in May 2015 with an unexpected majority, and shorn of the need to placate any squeamish Coalition partners, there was nothing now stopping the Conservatives from taking the action that they had so long argued was necessary.
This left David Cameron in something of a quandary. Even putting aside the issue of whether deep down he believed that the HRA really was the problem that he and his colleagues had so vigorously painted it to be, he must have realised that the proposed solution really wouldn’t work.
As long as the UK remains signed up to the European Convention on Human Rights, its citizens can ultimately go to the European Court of Human Rights in Strasbourg to enforce their Convention rights. Realistically, the Court was never going to simply agree to allow the UK to ignore its judgments.
The conundrum was that the more that any proposed British Bill of Rights differed from the Convention rights set out in the HRA, the more that people dissatisfied with being served up with this weaker own brand alternative would simply end up going to the Court in Strasbourg in order to enforce their ‘proper’ rights as set out in the Convention.
So, sure, the Government could, in practical terms, make it longer, harder and more expensive to enforce these rights by making the individuals go all the way to Strasbourg rather than allowing a domestic court to consider the issues, but ultimately there was only a limited amount that the Government could do to rein in its citizens’ human rights while remaining signed up to the Convention.
David Cameron therefore had little option but to limply announce that the Government would consult on ‘bringing forward proposals’ for a British Bill of Rights.
Having been whipped into a frenzy with such prolonged and teasing foreplay, the right wing media were understandably left bewildered by the failure to follow through and noisily voiced their dissatisfaction.
Instead David Cameron tasked his clever new Secretary of State for Justice, Michael Gove (yes all of this does seem a long time ago) to go away and come back with a solution.
Unfortunately, the more Mr Gove looked at the issue, the more he realised how intractable the problem actually was. Eventually, he seems to have settled on a relatively modest face-saving plan. Scrap the Human Rights Act, replace it with a pretty similar-ish Bill of Rights while staying in the Convention.
While, still not making a great deal of sense legally, this at least delivered on the political promise of scrapping the HRA.
Again, the right wing media rightly smelled a rat. After being told that the HRA had been the source of so many of the country’s woes for so many years, this was not the red meat that they had been promised, rather what seemed a less appetising reheated nut cutlet alternative.
Earlier this year, Michael Gove’s proposals went from the Ministry of Justice to the Prime Minister’s in-tray waiting for David Cameron’s sign-off. This is where they remained as the Prime Minister put the matter on hold until after the Brexit battle had been won and the political landscape was clearer.
During the campaign, the most widely reported contribution of the otherwise almost invisible Teresa May, the then Home Secretary, was, apropos very little, to announce that she favoured the UK coming out of the European Convention on Human Rights.
An unexpected intervention that was taken at the time as being a none too subtle message from a future leadership candidate to the Eurosceptic party faithful that, while she was a very reluctant Remainer, she nonetheless maintained a healthy disregard for meddling foreigners telling us what to do.
2016 – Brexit
The plot now takes an unanticipated turn with the victory of the Brexiteers. Queue tearful exit stage left by David Cameron en famille and the triumphant entry of Theresa May complete with an implausible Downing Street speech stressing her desire to smite burning injustice, something she managed to have held well in check during her six years as Home Secretary.
She promptly did a partial U-turn on pulling out of the European Convention, saying, probably correctly, that, taking into account concerns on her own benches (including from the self-styled Runnymede Tories), there was unlikely to be a parliamentary majority to pull out of the Convention.
This has now culminated in last week’s reports that plans to scrap the HRA had been further delayed, that Michael Gove’s proposals had been sent back to the Ministry of Justice and that Liz Truss, the new Secretary of State for Justice, would now be consulting on the matter.
So the question is where we go from here.
One possibility is that this consultation is a way of kicking the proposals back into the long grass indefinitely and that they will be quietly forgotten.
This is plausible. While talking is usually a good thing and goodness knows we can probably all point to elements of the Government’s recent legislative programme that would have benefited from greater consultation, issues relating to the HRA and British Bill of Rights have been pretty well ventilated and it is unlikely that any further consultation will reveal anything original of any great value.
The second possibility is that, following this further consultation, a British Bill of Rights along similar lines to those seemingly proposed by Michael Gove will eventually emerge to replace the HRA within the context of us remaining within the European Convention of Human Rights.
Again, these proposals would not make much sense legally but may not make a great deal of practical difference. The important thing is that they would do a job politically by allowing the Government to say it has repealed the HRA in the run up to General Election.
The third possibility is that there will be a consultation followed by more radical proposals to come out of the European Convention on Human Rights and scrapping the HRA with its replacement by a British Bill of Rights.
Worryingly perhaps, this appears to be the preferred course of the Prime Minister’s trusted Downing Street Chief of Staff and, if you truly believe in shaking things up, this is the most intellectually coherent approach.
However, it is also the most politically difficult. As the Prime Minister has already noted, she probably doesn’t have a Parliamentary majority (in either the Commons or the Lords) to do this.
Outside the Westminster Bubble
This would also be likely to cause untold grief in Scotland, as well as problems in Northern Ireland. Even scrapping the HRA and replacing it with a British Bill of Rights, which would undoubtedly be against the wishes of the Scottish Government and Parliament, would cause major problems.
However, coming out of the Convention would certainly create an almighty constitutional storm, not least because the Scottish Parliament have to date been required to exercise their law making powers on devolved issues in a way compatible with the Convention.
Any proposed change in these arrangements would raise very thorny issues in relation to whether the consent of the Scottish Parliament (which would almost certainly not be forthcoming) was needed. All of this would simply give further ammunition to those arguing for a second independence vote and therefore make independence far more likely.
Furthermore, ultimately any such proposals may not ultimately be that popular. While the HRA may be much maligned, proposals to pull out of an international treaty, forged as a response to the atrocities of the Second World War and which safeguard a basic level of rights across a continent may be a much harder sell.
An exit from the Convention would mean that UK would join Belarus, currently the only military dictatorship in Europe, as the only countries on the continent outside the Convention. Internationally, the damage to the UK’s reputation of leaving the Convention would be incalculable.
At the moment, my money is on the first option. Trying to cope with all of the implications of Brexit is likely to be all consuming and dealing with the HRA is simply an unwanted distraction. Why waste time and political capital on an issue that really is only a problem because you and your friends on Fleet Street have made it into one.
Nonetheless, I could see situations where the second option could become more attractive. If there are a series of high profile cases (similar to prisoner voting or Abu Qatada) that, however unfairly, allows the HRA painted as some kind of pantomime villain, the Government may feel the need to be seen doing something, however superficial or ineffectual, to deliver on its manifesto commitment and signal its Little Englander credentials.
All the more so, if UKIP or any bastardised reincarnation, start making inroads into Tory votes.
Overall, my overriding sense is that this is an issue that the Government simply wishes would go away. All somewhat ironic given that it is a problem largely of the Government’s own making.
In her infamous party conference speech of October 2011, Theresa May misleadingly blamed the HRA for allowing an illegal immigrant to avoid deportation because of his pet cat. (Always be wary of politicians when they feel the need say ‘and I am not making this up’ in their speeches.)
Having played no small part in the inaccuracies, distortions and lies that have been peddled about the HRA and that have led to the clamour for “something to be done”, the Prime Minister May’s probably now wishing she could as easily put the cat back in the bag.