Tucked away in the Conservative manifesto for the 2015 general election was a commitment that few – including, one suspects, David Cameron – assumed would require action: to “scrap the Human Rights Act” and “curtail the role of the European court of human rights”. After the surprise of his election with a majority, Cameron handed this unexpected chalice to Michael Gove, the new justice secretary, who was probably unaware of how poisonous were the contents of the cup passed into his hands.
Adopted in 1998, the Human Rights Act incorporated into British law the European convention on human rights, one of the great international legal instruments of the 20th century, along with the Charter of the United Nations. Reflecting Winston Churchill’s second world war aim of achieving the “enthronement of human rights”, it aims to hold to account the governments of 47 European countries who are members of the Council of Europe, offering rights and protections against governmental excess to individuals: freedom of expression, fair trials and the prohibition of torture are amongst the many rights enshrined. The UK was the first country to ratify the convention.
Significantly, when it came into force in 2000, the 1998 act allowed the courts of the United Kingdom, for the first time, to interpret and apply the convention, requiring them to “take account” of judgments of the European court of human rights in Strasbourg. Before then the convention was an unincorporated treaty that produced no legal effects, as such, in UK law and courts could not take into account judgments of the Strasbourg court. Even now, the courts are not bound by judgments from Strasbourg, as they are by judgments of the entirely different EU court of justice in Luxembourg. They are required only to take them into account.
For reasons that are varied and sometimes not fully substantiated, the 1998 act and the European convention have come to be detested by some prominent members of the government. They had sufficient support – and that of the prime minister – to lead to the removal from office (last year) of a distinguished attorney general, Dominic Grieve QC, whose hanging offence was a desire to defend the convention and the UK’s commitment to the rule of law. Its opponents would like to get rid of the act as well as the Strasbourg court, although quite what they would replace them with is unstated. They have proposed something called a British bill of rights, but we are not told what such an instrument would contain (as its proponents seem not to know), how it might work, and how – if at all – it would relate to the European convention. What we do know is that the proponents of change wish that foreign criminals could “be more easily deported from Britain”, and that our supreme court would be the “ultimate arbiter of human rights matters in the UK”.
The Human Rights Act is now totemically denounced as an undemocratic fetter on a sovereign British state and its parliament, and a threat to the fabric of our unwritten constitution. This portrayal has underpinned a growing movement that seeks the repeal of the act and – let us not run from the reality – a desire by some to reappraise the UK’s relationship with the European court of human rights. Remarkably, withdrawal is on the agenda, a path that the prime minister has pointedly refused to exclude. As with so much, what exactly he wants, or why he wants it, remains unclear.
We may soon know a little more. In the coming weeks Gove will announce a consultation on the manifesto commitment. What will follow may have profound consequences for the future of human rights in this country, for the UK’s engagement with Europe, and for international law itself.
Where then are we? I fear that the government is playing a dangerous game. This generation of politicians and newspaper editors has no actual experience of whence we came, and apparently no great sense of history either. One has the sense that many in our government would like to take us back to the perceived idyll of the 1930s, an isolated UK that is stripped of its connections to the continent of Europe, that leaves its own people deprived of rights or the means to enforce them before our courts.
The European convention reflected a deal, a compact between countries that claim to share a sense of values as to the liberty and dignity of the human person. In return for the shedding of some sovereignty, we obtain the right to hold others to account. The price paid in this country has not been a great one. Our common law has retained its essential vibrancy and values, the essence of which is exported through the convention and its interpretation by our courts. There has been no avalanche of cases, no transformation of a cherished approach, no implosion of essential parliamentary sovereignty, no dictatorship of the judges. Where Strasbourg has spoken against the UK, it has generally been right to do so.
