Theresa May’s politically opportunistic tirade against the European Convention on Human Rights is standard Tory fare and as such full of false insinuation. LIZ DAVIES explains
Theresa May sought to placate the Tory anti-human rights lobby — and win them away from Brexit — by claiming that Britain could withdraw from the European Convention of Human Rights (ECHR) while remaining in the EU.
She said: “The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals.”
Charles Falconer, Labour’s shadow justice secretary, called her speech “so ignorant, so illiberal, so misguided.” Indeed, neither pro-human rights Tories (Dominic Grieve) nor Tory Brexit campaigners (Michael Gove) agreed with her.
She may have been trying to triangulate but has ended up with no allies in any camp.
Quite simply, the ECHR does not bind the hands of Parliament. The Human Rights Act 1998 enshrines parliamentary supremacy. Judges can declare that an Act of Parliament is incompatible with the European Convention — a declaration of incompatibility — but it remains law until Parliament decides to change it.
This is quite different to countries with written constitutions, such as the US or South Africa, where judges can strike down legislation.
The European Court of Human Rights in Strasbourg can declare that a parliamentary provision breaches the Convention. Britain’s Treaty obligations require the government to address the breach, but until Parliament has legislated, the breach remains law.
The most obvious example is the argument over whether prisoners should have the right to vote. The European Court has declared several times that Britain’s blanket ban on serving prisoners voting is against human rights. It acknowledges that in some cases, there can be justification for removing the right to vote from prisoners but has ruled that a blanket ban is disproportionate. There should be a more nuanced policy.
However, the ban was reaffirmed by a parliamentary vote in 2011 and David Cameron has proudly proclaimed that prisoners would not get the vote so long as he remains prime minister. Despite Strasbourg’s rulings, prisoners in British jails remain unable to vote and parliamentary sovereignty prevails.
May’s next point — that human rights do nothing for prosperity — is a bit weird. Human rights are not supposed to add to economic prosperity. Not everything should be measured by its ability to generate profit. Even most capitalists acknowledge the existence of values over and above the profit motive: love, respect for each other etc.
Human rights are all about mutual respect. There is also the obvious point that economies thrive when people are secure and human rights add to security.
Unstable dictatorships have difficulty in attracting investment.
If she is going to judge human rights by economic values, she walks straight into an assault on the third obsession of the Tories — after Europe and human rights — maintaining the Union. The governments of Scotland, Wales and Northern Ireland all have compliance with the ECHR built into their constitutional settlements.
Withdrawal from the ECHR places them in an impossible position and would certainly boost the independence campaign in Scotland. Enshrining the rights in the ECHR was an important step in negotiating the Good Friday agreement — it made all parties feel protected. Eighteen years on, the agreement is still crucial to retaining a peaceful Northern Ireland.
The Conservative manifesto for 2015 promised repeal of the Human Rights Act and its replacement with a British Bill of Rights. That manifesto commitment simply brushed over the political and legal problems with a British Bill of Rights. Unless a British Bill of Rights were to contain the same provisions as the Human Rights Act — in which case what would be the point? — there are very real problems indeed.
It is striking that, a year after its election, the government hasn’t yet managed to publish a plan for a British Bill of Rights, let alone an actual draft.
The Tories have never quite answered the key question: which of these rights would you discard? A question asked by the late Lord Bingham, then Britain’s most senior Judge, in 2009. 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?
I can’t imagine anyone, even Daily Mail readers, wanting to abolish any of those rights.
Or would a British Bill of Rights provide that only fine, upstanding, law-abiding British citizens should enjoy those rights? Judges have made the point over and over again that human rights matter most when applied to those whom public opinion considers less worthy of respect.
Who those people might be varies from time to time. Currently “foreign criminals” are the bogey-men, so are terrorist suspects. In the past, women campaigning for the vote, LGBT activists campaigning for equal rights, anti-apartheid campaigners, football fans, asylum-seekers, striking workers have all been subject to public opprobrium, whipped up by the popular press.
The most careful consideration of the proposal to repeal the Human Rights Act and replace it with a British Bill of Rights, was by the Commission of a Bill of Rights set up by Nick Clegg in 2011. It had an in-built Conservative majority and so, unsurprisingly, it voted to repeal the Human Rights Act.
Helena Kennedy QC and Philippe Sands QC were the lone voices in opposition. But the details of its research hardly supported the majority conclusion.
Fascinatingly, it found that support for the ECHR was much stronger in Scotland, Wales, Northern Ireland and even in English areas away from London and the south east — there was strong support in Birmingham.
Two consultations, the second undertaken after the Commission felt uneasy with the first results, found that on the whole people were broadly supportive of the Human Rights Act. If anything, it was criticised for not containing more rights, rather than for being too generous.
While the majority on the Commission recommended a British Bill of Rights, they absolutely failed to answer how that would be any different from the Human Rights Act.
The Human Rights Act and the ECHR are not perfect. The left has long argued for the inclusion of economic rights: a right to a minimum income, a right to housing, healthcare, free education. But in a week when the Sun’s lies about the Hillsborough victims have been exposed, should we be relying on tabloid journalism or Tory cabinet ministers to decide who is and who is not worthy of human rights protection?
• Liz Davies is a barrister, Labour Party activist and vice-president of the Haldane Society of Socialist Lawyers. She is the co-author of Housing Allocation and Homelessness, with Jan Luba QC and Connor Johnston (Jordans, 4th edition, 2016). She writes this column in a personal capacity.