Allan Massie: Tories must not axe Human Rights Act

TORY manifesto pledge is best ignored when it comes to attack on law which underpins so much of what it is to be British, writes Allan Massie

Michael Gove has been given the task of plotting a course by which the Human Rights Act can be repealed. However, with high-ranking Tories opposed, his mission may be a fruitless one. Picture: Getty

Few people read election manifestos. Nevertheless, governments generally believe – or affect to believe – that a commitment made in a manifesto has popular approval. This is obviously nonsense. When you vote for a party you are at most expressing general approval, but there will always be elements in its programme with which you disagree.

The Tories committed themselves to repealing the Human Rights Act passed by the Blair government and replacing it with a British Bill of Rights. Michael Gove has been made Justice Minister (and Lord Chancellor) to pilot this through the Commons – and a nasty can of worms is about to be opened. The Tories have only a slim majority and unless the proposed bill is carefully and generously crafted, there is likely to be a rebellion. David Davis, Kenneth Clarke and Dominic Grieve are three experienced and respected liberal-minded Tories who view the proposal with misgivings.

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It all relates to the European Convention on Human Rights (ECHR) which predates the Blair Act by almost half-a-century. The Convention and the European Court of Human Rights in Strasbourg have nothing to do with the European Union – the Court is an offshoot of the Council of Europe, essentially a British creation which existed before the Treaty of Rome brought what was then the European Economic Community into being. The convention itself was inspired by Winston Churchill and was largely drafted in its final form by the Conservative lawyer-politician David Maxwell Fyfe (a Scot, educated at George Watson’s in Edinburgh, incidentally.)

Winston Churchill was a prime mover in the creation of the ECHR

The essential purposes of the convention are to impose limits on what it is permissible for governments to do, and to provide citizens with a means of legal redress if states infringe what the convention declares to be their human rights. Its roots lie in our common law and it is an expression of the post-war determination to erect a legal barrier against dictatorial or authoritarian regimes. In effect the convention proclaims that there is a moral law which must bind governments and restrict their activity.

Britain signed the convention which meant that people who thought their rights had been infringed could take their case to the Strasbourg court. The Blair government’s Human Rights Act was intended to make for quicker and perhaps cheaper justice by making it possible for such cases to be dealt with in our courts. But it was still possible to appeal from a judgment there to Strasbourg. We don’t yet know what form any Tory bill will take, but if it was to make the British Supreme Court the final arbiter, we would come close to scrapping our commitment to the convention. This would provide a precedent for other authoritarian governments to do likewise. It can’t be said too often that the European Convention is the most effective guarantor of the rights of the individual citizen against the over-mighty state and the tendency of governments to restrict human rights, usually in the name of so-called national security. The great virtue of the European Court of Human Rights is that it is a supra-national authority.

Actually, there will be severe difficulties in dismantling existing human rights legislation and replacing it with a new bill. Existing human rights law is enshrined in both the Northern Ireland Peace Agreement and in the devolution settlements for Scotland and Wales. It is not clear how it would be possible to revise these, especially in view of the opposition such a proposal would provoke in the Scottish Parliament and the Welsh and Northern Irish assemblies. But even if it proved possible, would it be desirable?

Dominic Grieve, the former Tory attorney-general, whose dismissal last year was interpreted as preparing the way to the repeal of the Human Rights Act and even to backing away from the ECHR, has warned that doing so would leave us in breach of our international obligations. This is surely true. Worse, however, would be the message given to authoritarian regimes. If the United Kingdom should repatriate the powers ceded to the European Court of Human Rights, why shouldn’t others follow our example? The attempt to establish the principle that human rights are too important to be entrusted to national governments alone, without the prospect of redress of their citizens’ grievances, would have failed. The clock would have been turned back to the 1930s.

No doubt the Strasbourg Court may need to be reformed. It is often too slow, especially since the advent of new democracies in eastern Europe has resulted in a backlog of cases. It may be that some of the judges are of insufficiently high calibre. Too often also their judgments may not take sufficient account of divergent national traditions and habit of mind. But these are venial faults, capable of being corrected, and in any case they scarcely impair the fundamental purpose of the ECHR: that it exists to protect individuals and social groups from injustice and persecution. For the UK to walk away from the ECHR would set a very damaging precedent.

Happily, this is one Conservative manifesto commitment that may be blocked.

A government with a majority of only 12 cannot confidently embark on legislation which is opposed not only by other parties in the Commons but by respected members of its own party. Unless any proposed legislation is so framed as to be little more than cosmetic, it is hard to see Tory MPs like Davis, Clarke and Grieve marching into the government lobby. Furthermore, remarkable as it may seem, the Tories have no majority in the House of Lords. While it is true that, in accordance with the so-called Salisbury Convention, the Upper House engaged not to reject a government bill that had been proposed in an election manifesto, the more varied composition of the Lords today may be thought to have rendered this convention out-of-date. In any case, any human rights bill would be likely to be severely mauled and revised in the Lords.

David Cameron would be wise to change tack. If he doesn’t, he is storing up trouble for himself – and for no worthwhile purpose, indeed for a purpose of which he should be ashamed.