Repealing the Human Rights Act

02 Oct 2014

In his speech to the Conservative Party conference yesterday the Prime Minister said "…and as for Labour's Human Rights Act? We will scrap it once and for all." Repealing the act is quickly done but it begs the question, what's the point?

The Human Rights Act just imports the Convention for the Protection of Human Rights and Fundamental Freedoms into UK law so human rights decisions may be made in the first instance by UK judges in UK courts. The Convention was adopted by the Council of Europe on 4 November 1950. The British government played a huge part in its creation and much of the drafting was guided by Sir David Maxwell Fyfe QC (then Chairman of the European Assembly's Committee on Legal and Administrative Questions). Sir David might be less than amused at the characterisation of one of his achievements as "Labour's Human Rights Act"; he was a Conservative MP who served in Sir Winston Churchill's governments as Solicitor-General (1942 – 1945) and Home Secretary (1951- 1954).

The Convention is at the heart of the European Union.  Article 2 of the Treaty on European Union states:

"The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for Human Rights, including the rights of persons belonging to minorities.  These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail."

Article 6 of the Treaty says that the rights guaranteed by the Convention stand as general principles of EU law – to which we, as a member state, must adhere. So what happens when the convention is taken out of UK law on the repeal of the act?

The Convention couldn't be cited in argument before UK courts and tribunals which would no longer be required to give effect to it in their decisions. The government wouldn't have to certify new legislation as compliant with the convention and local government wouldn't have to take account of it. On the other hand the UK will remain bound by Strasbourg's jurisdiction and jurisprudence so there'll be an increased flow of appeals to Europe. Presumably that'll lead to more decisions coming back which the UK government doesn't like, increased cost and extra delay. If the Prime Minister's intention is actually to repatriate all judicial decision making he'll have to be more radical. It seems to me he'll have to start by withdrawing our country from the Treaty of Lisbon then find a way of disengaging our legal system from the rest of Europe.