The new Conservative government is planning to repeal the Human Rights Act during its first 100 days in office in an attempt to “break the formal link” between UK courts and the European Court of Human Rights.
The 1997 Human Rights Act requires British courts to “take into account” case law from the European Court of Human Rights.
The Tories want to repeal the act. A move, they claim, will make Britain’s Supreme Court “the ultimate arbiter of human rights” in the UK.
As things stand, the British government is not seeking to leave the Council of Europe (which runs the European Court of Human Rights) or remove itself as a signatory from the European Convention on Human Rights.
As a result, the UK would still be bound by any decisions made by the court to which it was party to.
The Act has become extremely unpopular among the right-wing of British politics (and media) and repealing it is seen as a way of asserting Conservative values after five years of coalition government, and of sending a message to Brussels. Although separate from the EU the Strasbourg court is seen and an example of unnecessary continental oversight by its opponents.
It has become synonymous with blocking attempts by the UK government to impose whole life sentences on violent criminals and standing in the way of deportation of criminals. Critics say it grants overzealous protection to a right to a family life and protection from torture. Both articles were used to delay the extradition of extremist preacher Abu Qatada.
Repealing the Act has been a long standing ambition of the Tories.
Their manifesto promised to “restore common sense” to human rights law in the UK and will “reverse the mission creep that has meant human rights law being used for more and more purposes.”
Despite winning their first majority in the House of Commons since 1992 they face substantial obstacles to make it reality.
Not least of all from within their own party.
Prominent opponents include former Home Secretary Ken Clarke and former Attorney General Dominic Grieve. Writing in his local paper, the Hull Daily Mail, prominent Tory Eurosceptic David Davis said, “I don’t want us to leave it (ECR). If we leave, it’s an excuse for everyone else to leave.”
Labour’s Shadow Secretary of State for Justice, Lord Falconer, said today, “The UK Government should not be sending the message that it is undecided on whether it continues to support Human Rights and their incorporation into UK domestic law. Labour will resist any attempts to dilute the commitment to Human Rights.”
Kate Allen, from the human rights charity Amnesty International said the move would be a “disaster”.
“Despite the bad press it sometimes gets, the Human Rights Act protects just 16 precious rights and freedoms. It helps the elderly, the sick, the most vulnerable,” she said.
“People have fought for these rights over generation and in other countries around the world people continue to risk their lives and liberty to get them. Those hard-won rights stand to be taken away with the stroke of a pen,” said Allen.
A Ministry of Justice spokesperson said, “The Government was elected with a manifesto commitment to replace the Human Rights Act with a British Bill of Rights. Ministers will be discussing their plans on this and making announcements in due course.”
Although the Conservatives hold a majority in the House of Commons, they do not in the House of Lords. Parliamentary convention holds that the Lords do not block manifesto commitments containing in a majority government’s manifesto.
This will be tested with many Labour and Liberal Democrats in the upper house opposed to the move.
It may also face strong opposition from the individual nations that make up the United Kingdom. The Scottish National Party (who won 56 of the 59 parliamentary seats in Scotland and hold a majority in the Scottish parliament) are opposed to repealing the Bill.
Although not binding in law, in practice changes to constitutional law require the consent of the developed powers in the nations. The Scottish government last October said they were “strongly opposed” to any attempt to repeal the Human Rights Act.
Potentially more problematic is Northern Ireland. The Human Rights Act is an integral part of the Good Friday Agreement which has helped bring about the peace process in Northern Ireland. The European Convention on Human Rights is also referenced by the document, according to the Financial Times.
Irish Foreign Affairs Minister Charlie Flanagan said the protection of human rights was “Fundamental…in guaranteeing peace and stability in Northern Ireland.”
“The shared emphasis on human rights is part of what makes the peace process credible,” Flanagan told the FT.
Writing in the UK Constitutional Law Association blog on Sunday, Mark Elliot contends that Scotland will ultimately prevent David Cameron from rescinding the Human Rights Act.
Elliot quotes Social Justice Secretary, Alex Neil, in a statement to the Scottish parliament last Tuesday: “The Scottish government’s position is that implementation of the Conservative government’s proposals would require legislative consent and that this parliament should make clear that such consent will not be given.”