Estragon’s boot: the Conservatives delay the repeal of the Human Rights Act

27th February 2016

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Estragon, sitting on a low mound, is trying to repeal the Human Rights Act.

He pulls at it with both hands.

He gives up, rests, tries again.

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According to a news report today, the Conservative government has “shelved” the proposals to repeal the Human Rights Act and replace it with a “British Bill of Rights”.

This is not a surprise. It was never going to be an easy task.

In the last week or so, the proposals – as well as a daft and dappy “Sovereignty Bill” proposal – have been nothing other than tokens in a political game between the Prime Minister and other Conservative politicians about supporting and opposing Brexit.  But the tokens turned out to have no value and no purchase in this game.

Last May this blog set out the “seven hurdles” for repeal of the Human Rights Act.  These hurdles included the facts that the Good Friday Agreement requires the European Convention on Human Rights to have local effect in Northern Ireland and that Scotland would have a veto on the replacement legislation.

These were real hurdles, and they could not be wished away in a game of tokens.

The hurdles are still there.

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The Human Rights Act is not likely to be repealed this Parliament.

Even if the Conservatives could agree on the proposals, and somehow had solutions to the problems presented by Northern Ireland and Scotland, the parliamentary arithmetic is against them: it is an issue which divides the Conservatives and would unite the opposition parties in both houses.

The Act is not a perfect piece of legislation, even for supporters of human rights law.  It actually does not do a lot which could not be done by courts drawing on other, domestic case law; but it does enough.

And the Conservatives have begun to realise that it is not worth the time and the effort of repealing and replacing it.

*

Estragon with a supreme effort succeeds in pulling off his boot. He peers inside it, feels about inside it, turns it upside down, shakes it, looks on the ground to see if anything has fallen out, finds nothing, feels inside it again, staring sightlessly before him.

“Nothing.”

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With apologies to Samuel Beckett.

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The “Bill of Rights” and a blank sheet of paper.

4th October 2015

There appears to be further slippage in the Tory proposals for repealing the Human Rights Act.

Look at the following three quotes (with an emphasis added to each one):

“The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.”

Guardian, 10th May 2015

“We will bring forward proposals on a Bill of Rights this autumn.”

Dominic Raab, MoJ Minister, House of Commons, 8th September 2015

“Mr Gove is also grappling with how to fulfil the Conservative manifesto commitment to replace the Human Rights Act with a British Bill of Rights. The consultation will, he says, be out “in a few months’ time”.

Interview with Michael Gove, Lord Chancellor, The Times, 3rd October 2015

You will also see the Tories have gone from a Bill in the Queen’s Speech, to “proposals”, to a “consultation”.

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So what is happening?

Why is repeal of the Human Rights Act proving to be the Godot of repeals?

“Estragon, sitting on a low mound, is trying to repeal the Human Rights Act. He pulls at it with both hands, panting.   He gives up, exhausted, rests, tries again.”

 

It is not difficult to imagine.

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In a room, somewhere in Whitehall, there is a desk and on that desk is a piece of A4 paper, and a pencil.

The paper has as a title “British Bill of Rights”.  It is otherwise blank.

Every so often, a person comes in to sit at the desk.  The person may be a civil servant or a minister or a special adviser; indeed, they may take turns.  The person picks up the pencil and looks at the paper.

From time to time, the person goes to start writing a draft clause but hesitates, and sighs.  And the paper remains blank but for the title.

Once, when news came in from Scotland and Northern Ireland, as to their opposition to repeal of the Human Rights Act, there was a flash of inspiration: the word “British” was crossed out, leaving “Bill of Rights”.

But for that, the page still remains blank.

“Never mind,” thinks the latest person in that room, “this does not need to be done for another few months”. 

*

The constitutional and political reality is that, for the reasons set out in an earlier post, the repeal of the Human Rights Act and its replacement with a “Bill of Rights” – British or otherwise – will be a virtual impossibility this parliament.

It also remains difficult to see how a new “Bill of Rights” will be any different from the current Act.

Repeal is an easy thing to promise, and to promise it will always get easy Tory cheers and easy approving copy in the tabloids; but it is hard in practice.

So unless the Tories get a move on, it looks like the Act (which celebrated its fifteenth birthday of coming into force this week) will still be there at the 2020 General Election, and no doubt a promise to repeal it will then be in the 2020 Tory Manifesto.

And, if the Tories win, then the process of coming up with a replacement will start, all over again.

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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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Round-up: five posts on the constitutional problems with Human Rights Act repeal

11th May 2015

From before the general election:

Human Rights, Devolution and the Constrained Authority of the Westminster Parliament by Colm O’Cinneide

Will devolution scupper Conservative plans for a “British” Bill of Rights? by Aileen McHarg

 

Since the general election:

Scotland and Human Rights Act abolition… by Lallands Peat Worrier

Replacing the Human Rights Act: the House of Lords, the Parliament Acts and the Salisbury Convention by Dr Mark Elliott

Michael Gove’s attempt to repeal the Human Rights Act faces almost insurmountable odds by Matthew Scott

 

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Round-up: three pieces to read on the appointment of the new Justice Secretary

11th May 2015

These three pieces on the new Lord Chancellor are worth reading:

Gove’s intelligence will make him a very different justice secretary to Grayling by Andrew Neilson

Why human rights reform could trip up Michael Gove by Joshua Rozenburg

Finally: Grayling is gone – but can we trust his successor? by Ian Dunt

 

(And there is also my post from yesterday.)

 

 

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A new Secretary of State for Justice and Lord Chancellor

10th May 2015

There is a new Lord Chancellor and Secretary of State for Justice – but what difference does this make?

 

In one way it is a welcome move.  The previous Lord Chancellor and Secretary of State for Justice – Chris Grayling – was not a success. This was not just because of the Treasury-driven cuts: those would have affected any politician in the job, and indeed implementation of the cuts in respect of civil legal aid were the responsibility of Grayling’s predecessor, Kenneth Clarke.

But Grayling made things needlessly worse.  His grand design for reforming criminal legal aid was unrealistic and botched, and the consultation had to start from scratch. Again and again the High Court found the Ministry of Justice to be acting unlawfully which, if you think of it, is a rather odd thing to happen to this particular department.  Scarce departmental resources were used to promote a Bill – an extended press release dubbed the “SARAH Act” – which actually made no change whatsoever to the law of the land.  And his personal stubbornness ended up with his spending £72,000 of taxpayers’ money to defend a prison books restriction which the bemused judge regarded as “strange” before quashing it.

The Ministry of Justice needs a fresh start, and it is good that it has got one.

 

The appointment of Michael Gove is controversial.  His record at Education received (and deserved) heavy criticism.  But any complaint as to his time at the Ministry of Justice should be based on what he now does as Lord Chancellor and Secretary of State for Justice, and not what he did elsewhere.  After all, the basis of natural justice is not to prejudge a case, and to be dismissive of him before he even starts is also to play into the hands of his political supporters.

That said, Gove will need to be careful as to the targets he chooses and the initiatives he launches.  Both the criminal and civil justice systems are in a delicate state, and the probation and prison services are already undergoing what can be euphemistically be called “change”.  One wrong move and there could be a political calamity, and prisons especially can ruin a politician’s reputation: ask David Waddington, the right-winger who was packed off to be Governor of Bermuda when prison riots erupted on his watch as Home Secretary (responsibility for prisons is now with the Ministry of Justice).

 

News reports suggest that Gove’s first job is to repeal the Human Rights Act 1998. That is something which gets easy applause but is actually not that straightforward – not least because it is unclear what could replace it which would be any different to the fairly limp legal provisions of the existing legislation.  There are also problems because of the devolution settlements: both Scottish and Northern Irish devolution have human rights protections built in the current arrangements.  And the English courts have spent a good part of the last decade “developing” the common law in anticipation of repeal so as to give rights protection to citizens.

So replacing the Human Rights Act is not as simple as it seems – though supporters of human rights now need to make the case against repeal a lot better than they have done so far.

 

Nobody knows how Gove will fare at the Ministry of Justice.  He is highly intelligent, a fluent communicator, and a cabinet “heavyweight”.  In all three respects he has a marked advantage over his predecessor.  On budget cuts he is in the same position as any new Secretary of State and Lord Chancellor would be in – and neither Labour nor the Liberal Democrats promised at the general election any increase in the legal aid budget.

One key question is whether the new Secretary of State and Lord Chancellor has a feel for the Rule of Law and how citizens can practically use and defend their legal rights.  Legal aid and access to justice are not really about the self-interest of lawyers: the issue is how citizens can go about and rely on the court system to ensure that the law is enforced.  There is no point in a legislature passing legislation if you cannot depend on those laws in the real world.

Another key question is whether the Secretary of State and Lord Chancellor wants probation and prisons policy to be an end  in itself, or the means by which society becomes safer in the medium to longer term.  There are currently over 80,000 people in prison, all of whom (with a handful of exceptions) are to be released back in to society. For a politician with vision, there is a chance with probation and prisons policy to make a genuine national improvement.

 

It may well be that this blogpost is too optimistic, and that the new Secretary of State and Lord Chancellor will be as bad as the last one, if not worse.   But that doesn’t have to be the case.

What is beyond doubt, however, is that the running of the Ministry of Justice needs drastic improvement, and that this improvement needs to be quick.

 

 

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Human Rights Act and Bingham’s Question: which rights are we to discard?

So the Human Rights Act and the European Court of Human Rights are in the news.

One Tory Minister wants to repeal the Act, and another wants us to withdraw from the Court.  The extent to which either of these propositions make sense is expertly set out by Adam Wagner, perhaps the UK’s leading legal blogger.

The proposals are depressing on two levels.

First, it is clear that such calls are gesture politics.  The Tories have lost a by-election and feel the need to play to the audience.  There is no real chance that the Act will be repealed or the UK withdraw from Strasbourg.

Second, it represents a failure by those in favour of human rights law.  It is now over twelve years since the Act took effect, but still uninformed and misleading statements about human rights law are made by those who should know better and circulated by those who could not care less.

But since 2000, human rights have become part of the mainstream in litigation.  Even Associated Newspapers has sought to rely on its Article 10 right to free expression under the ECHR (see paragraphs 33 and 36 here).   But the frequent use of human rights law in the courts has not been matched by a more informed public debate.

Indeed, one of the shortest conversations one can have in British politics is when a critic of human rights is asked to be specific as to which rights under the ECHR and provisions of the Human Rights Act should be abandoned.  It is almost as “human rights” is a hobgoblin with no more substance than is necessary to scare us.

In fact, the Human Rights Act is an instrument which should be commended by those who want the UK courts to decide things instead of Strasbourg.  The Act’s existence has made it rare for applicants to go to the European Court of Human Rights, and the case law developed by UK judges in UK courts since 2000 means that Strasbourg jurisprudence has become less relevant.  The Human Rights Acts also provides that UK judges cannot disapply primary legislation on human rights grounds, and so the supremacy of parliament is maintained.

And as for the convention rights themselves, which ones should we not have as protections?  As the late Lord Bingham said in a lecture which should be read in full by anyone interested in the human rights debate:

The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.

Let me briefly remind you of the protected rights, some of which I have already mentioned.

The right to life.
The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved.
The right to liberty and security of the person.
The right to a fair trial.
The right not to be retrospectively penalised.
The right to respect for private and family life.
Freedom of thought,conscience and religion.  Freedom of expression.
Freedom of assembly and association.
The right to marry.
The right not to be discriminated against in the enjoyment of those rights.
The right not to have our property taken away except in the public interest and with compensation.
The right of fair access to the country’s educational system.
The right to free elections.

 

Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British? 

There may be those who would like to live in a country where these rights are not protected, but I am not of their number.
Human rights are not, however, protected for the likes of people like me – or most of you. They are protected for the benefit above all of society’s outcasts, thosewho need legal protection because they have no other voice – the prisoners, the mentally ill, the gipsies, the homosexuals, the immigrants, the asylum-seekers, those who are at any time the subject of public obloquy.

Here Lord Bingham nails it: just which of these rights do we really wish to discard?

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