The hurdles for Human Rights Act repeal now seem higher than before

25th May 2015

 

The new Conservative government’s plan to repeal the Human Rights Act 1998 and enact a replacement, apparently within one hundred days of the general election, was never going to be easy.

Nonetheless the government still intends to make some announcement in this Wednesday’s Queen’s Speech.

This brief update post sets out some of the more recent developments.

 

To recap, there are seven hurdles to speedy repeal:

(1) the Good Friday Agreement expressly requires that the European Convention on Human Rights is enforceable in the jurisdiction of Northern Ireland, and so if the Human Rights Act is repealed it will need to be replaced immediately by another statute which has the same effect (the alternatives to this of (i) the UK breaching the GFA or (ii) the Republic of Ireland and the nationalists in Northern Ireland agreeing to remove this requirement are not feasible);

(2) it is arguable that repeal of the Human Rights Act requires the consent of all three of the devolved assemblies and is almost certain any replacement legislation will also need consent, and in Scotland at least it appears the Scottish Government will recommend consent not be given;

(3) the Conservatives in the house of commons only have a majority of twelve, and there are Conservative MPs opposed to repeal;

(4) the Conservatives in the house of lords do not have a majority at all and even if the “Salisbury Convention” is invoked against lords’ delay, the “one hundred day” ambition was not a manifesto commitment – and it may well be that the lords do not accept the Salisbury Convention applies at all;

(5) the Conservatives need to set out which substantive rights will be protected in the new legislation and how these will differ, if at all, from the convention rights under the ECHR;

(6) the Conservatives need to come up with a draft of the replacement legislation, which they still have not done (this has been promised for a long time); and

(7) the Conservatives need to explain why any of this entire exercise is necessary in the first place, especially as there appears to be no problem with the Human Rights Act which can only be cured by its repeal.

 

Some of these hurdles have got higher in the last week or so.

In respect of Good Friday Agreement hurdle, the Irish Times has reported that the Republic of Ireland government is concerned about the UK plan to scrap Human Rights Act.

In respect of the devolution hurdle, the Scottish first minister has now stated the Scottish government’s firm opposition to repeal.

[ADD, the Welsh Government oppose repeal too – thanks to Aled’s comment below for this.]

In respect of the Conservative backbench hurdle, it has been reported that David Davis is shaping up to oppose repeal and that there may even be a ministerial resignation.

In respect of the house of lords’ hurdle, the Labour front bench have stated that they do not accept that the Salisbury Convention applies.

In addition to these, the government is reported as still being no nearer finalisng a replacement Bill, as according to the Guardian there has been seven drafts to date of the Bill, and it still is not in final form.

 

One Conservative politician, Dan Hannan MEP has put forward a critique of the Human Rights Act, to which Matthew Scott has provided a (in my view) brilliant and deft response.  Both should be read so to gain a flavour of the debate.

 

One may think that risking a crisis over the Good Friday Agreement, creating tension with the devolved administrations, providing a new rallying cause for the SNP, prompting an immediate backbench revolt when you have a wafer-thin commons majority, and setting up a clash with the house of lords – and to do all this in “one hundred days” – is a rather odd thing to do in the name of a “common sense” reform – especially when the government has no clear idea about what will replace the Human Rights Act.

But then again, many stupid things are done by those convinced they have “common sense” on their side.

 

None of the above means that repeal of the Human Rights Act, and its replacement with “a British Bill of Rights”, in one hundred days, is (literally) impossible.  The ministers responsible, Gove and Raab, are clever and ambitious, and it appears the prime minister is determined. And who knows what clever wheeze will be presented in Wednesday’s Queen’s Speech.

However, repeal of the Human Rights Act, and its replacement with “a British Bill of Rights”, in one hundred days, is looking more unlikely than before.

 

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23 thoughts on “The hurdles for Human Rights Act repeal now seem higher than before”

  1. I don’t consider these to be significant barriers.

    On 1 and 2, the easiest (and best) route is to give the various devolved bodies the choice of opting into the BBoR (none will, obviously). That leaves different laws in place in England and the other 16% of the UK, but that is the entire point of devolution.

    On 3, the majority is 16, not 12. See

    https://colinrtalbot.wordpress.com/2015/05/09/parliamentary-arithmetic-for-dummies-tory-majority-is-a-bit-less-slim-than-it-looks/

    The DUP will probably abstain and not oppose (their manifesto also called for changes to the HRA). The SNP can be neutralised by leaving the Scottish position unchanged. It was a manifesto commitment, it is the first session of the first majority Tory government since 1997, and their will be a three line whip. Grieve is the only probable (as opposed to possible) rebel. It will pass easily.

    4. may depend on the size of the Commons majority. Forcing the Commons to invoke the Parliaments Acts, when there was a manifesto commitment and a clear Commons majority, would be a death sentence for the House of Lords in its current form. But, even if they do, the Parliament Acts means the Commons still win eventually.

    5. is drafting.

    6. is drafting.

    7. is irrelevant. They don’t need to do this at all, indeed they will say they did this at the General Election we just had, and which they won.

    1. Thank you for this, which helpfully brings together various points you have tweeted about.

      It will hardly be a “British” Bill of Rights if only one (perhaps two) of the constituent parts of the UK are covered by it. And if it is not a “British” Bill of Rights then that is not what was in the manifesto.

      The Scottish Government has said it will recommend the Scottish Parliament not consent to the Act’s repeal and its replacement (whether with your idea of it being opt-in or not). That is a brute political fact. As such the hurdle remains: there will be a political cost.

      The government, of course, is in no position to give a “death sentence” to the House of Lords. That is rhetoric. And the manifesto commitment is not “clear” if the word “clear” has any meaning. It is vague. There is no detail.

      Which substantive rights will be included is not a mere drafting point; nor is the mechanism of enforcement. Sections 2, 3 and 6 of the Act are together a well-constructed and balanced mechanism, compromising the ECHR with the sovereignty of parliament. To say coming up with an alternative is just a drafting point is misguided. It is no accident that the current draft is going through re-write after re-write, with no end in sight.

      And (7) is hardly irrelevant. For the proposals to gain traction, and so jump the other hurdles, there has to be a *point* to them. Your wishy-washy opt-in opt-out BBOR is not the stuff that will convince anybody that any change is actually needed.

  2. Of course no change is actually needed. I think the whole thing is daft, driven by silly Daily Mail scare stories. The laughable 40 page draft shows what a dog’s dinner it is going to be.

    But.

    I don’t think that it is a precondition of this passing that it improves on the HRA. It won’t, it will be worse. It also isn’t a necessary hurdle that those who know about this kind of thing are persuaded in order to gain ‘traction’. Nor is it a precondition that it is brought into force in the entire United Kingdom. Without reversing devolution that isn’t going to happen, but that doesn’t mean it won’t happen in England.

    (The position with regard to Scotland and Wales is not straightforward. The devolved legislatures and executives in Scotland and Wales are required to comply with Convention rights by virtue of specific provisions set out in the devolution statues (s. 29(2)(d) and s. 57(2) of the Scotland Act 1998; s. 81(1) and s. 94(6)(c) of the Government of Wales Act 2006). That doesn’t prevent repeal of the HRA for non-devolved matters across Britain. The government won’t touch Norther Ireland if they have any sense.)

    I also think the prospect of any significant Tory rebellion is far-fetched. The House of Lords will also no doubt oppose, but I don’t think it likely they will go into the last ditch in the way you suppose, nor that even if they do the political will is not there to force compliance. It is being given too much prominence for that.

    It is happening I think. We are going to get something like this private members’ Bill from 2013

    http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0031/2013031.1-7.html#j01

    1. I have been careful to use the word “hurdle” as opposed to, say, “barrier”. Hurdles can be surmountable. And I have always said that they may be; it is just that seems to me to be unlikely that the government can jump them all, at least in one hundred days.

      You disagree. You do not think the seven points I make even constitute hurdles, or even noteworthy bumps, and that it is a flat-enough road for the government to repeal the Act and so on – at least in England – should the government want to do so.

      Anyone reading the post above and our exchange will form their own views; but I think it unlikely that the government will proceed, whether over my jumps or down your garden path.

  3. In 100 days? No, that looks much too ambitious.

    Will it happen though? Yes, I think it will, there is nothing significant to stop it. I get a sense of disbelief about that from many, that seems to me to be unjustified. None of these issues (whether hurdles or barriers) look insuperable, and too much political capital has been invested by now for it to be abandoned, especially by a new government.

    I suspect there will be more to be gained from trying to salvage something from the new Act that is passed, rather than trying to stop the repeal of the old by a government with a decent Commons majority.

    It is, I think, very sad. Back in 1998 the HRA had cross party support that it no longer has. The blame for that isn’t solely the Tories’. Successive Labour Home Secretaries bemoaning interventionist judges also undermined the idea of a long lasting consensus about it.

    One it is gone the problems won’t stop. Labour will presumably commit to re-enact the HRA, and we may go back and forth between one set of ‘rights’ and another.

  4. Human rights shouldn’t even be capable of being voted on; otherwise they wouldn’t be ‘rights.’ The little majority of the Conservatives shouldn’t be seen as permission to do this.

    The ECHR was set up in the first place to stop democratically elected governments from repeating the mistakes of history.

    Europe should put in place whipping emergency economic sanctions against this UK country until we learn how to behave ourselves.

    1. “Human rights shouldn’t even be capable of being voted on; otherwise they wouldn’t be ‘rights.’ The little majority of the Conservatives shouldn’t be seen as permission to do this.”

      Human Rights were never voted for by the people in a referendum. They have no more legitimacy than any other act of parliament or treaty.

      1. Democratic human rights, that protect vulnerable minorities, should not be subject to popular whim or a government of the day. They were designed to protect us from both.

  5. A “British” Bill of Rights isn’t one which (necessarily) applies to the whole of Britain any more than a European Convention has to apply to the whole of Europe to keep the name.

    But, much more importantly, the wider debate – for or against the HRA/ECHR – isn’t going to go away simply because there are hurdles of the type which JoK writes about so skilfully. There really ought to be a solution which addresses both the legal and the political problems triggered by the “living instrument” doctrine which means that countries signed up to an international contract without knowing what terms they had actually signed up to. Indeed, the emergence of the living instrument doctrine after (some) countries had signed up means that some (many?) countries didn’t even know that they didn’t know what they had signed up to.

    A politically and legally acceptable solution almost certainly can’t be achieved without the UK government taking the other signatories with them. But I believe solutions do exist. I have discussed one possibility at http://wp.me/p694Hp-Ib.

    1. The living treaty or European Court case law is a big part of the problem. We signed up to Churchill’s convention not the modern interpretations of politically appointed liberal judges. Article 1 deliberately left out of the HRA says that human rights only apply in the UK as far as we are concerned not Jordan, so how come we couldn’t deport Qatada? He got more than his fair share of fair trials in the UK at great expense and was not mistreated. That’s all that was required of us.

  6. Jeopardising the Good Friday Agreement – or any international treaty – is hardly a thing to be considered lightly: it is a measure of how irresponsible our Conservative MP’s have become, that we have heard so little dissent.

    Or even mild concern.

    Is there really nothing more important in Policy and Parliamentary politics than pursuing the approval of the Daily Mail?

  7. I predict this course of events:

    They pass a repeal bill to take effect a few years down the line (say 3) to give time to pass a new bill.

    They spend two years restarting over and over, finally they reorder and rephraise a few of the existing articles and pass what is in effect the same document.

    They declare victory and try and move on.

    Labour declare that they will return to old HRA if elected so putting us in a pointless oscillation.

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