Why abolishing the Human Rights Act will be a rough ride for Michael Gove

A fight on his hands. Policy Exchange/Flickr, CC BY

The eradication of the Liberal Democrats as a major political force is already having some rather stark consequences – and one of them may be the end of the 1998 Human Rights Act.

While Nick Clegg never made the act’s preservation a “red line” for any coalition negotiations, the Lib Dems had been enthusiastic defenders of the act since its inception. The 2010 coalition agreement committed the last government to establishing an independent Bill of Rights Commission to look at the act and Britain’s relationship with the European Court of Human Rights. It also specifically stated that the purpose of the commission was to ensure “that these rights continue to be enshrined in British law” and promote a better understanding of existing obligations.

So the coalition’s stated policy was never to abolish the Human Rights Act (HRA), but instead to enhance it and examine the basis of hostility towards it.

Impressions over substance

The Conservative Party was involved in the creation of the European Convention of Human Rights in the 1950s. Yet its 2010 party manifesto (written before the later coalition agreement) committed to repealing the act. This idea of repeal was originally devised in 2007 as a sweetener for the party’s right-wing eurosceptic flank, and was also a useful way to respond to concerns about violent crime. This means that the case levelled against the act has been incoherent, based on negative impressions rather than the actual substance of the legislation.

After the 2010 election, the job of examining the act was hived off to the commission. When the commission reported in late 2012 it came down in favour of preserving the act as it stood – but noted that there was a need for broader public education on protection rights.

So for a while, the act seemed more or less safe. But a mid-term decline in the Conservatives’ electoral confidence prompted a move to the right and led to home secretary Theresa May committing a future Conservative government to repealing the act in favour of a “British bill of rights” – clearly spurred by the difficulties she faced deporting terrorist suspects such as Abu Hamza.

David Cameron again returned to the idea of a British bill of rights in his 2014 conference speech, arguing that it could alleviate the restrictions and conflicts created by the European Convention on Human Rights. The idea is that a bill of rights would replicate the European Convention but prevent human rights from being used in “trivial cases” and stop the European Court of Human Rights from “having a say” over British laws. Cameron’s proposal was met with broad criticism, and there are suggestions that its interpretation of the convention is seriously distorted.

Given this context, the options for incoming justice secretary Michael Gove are not easy.

What would abolition involve?

As the legal journalist Joshua Rosenberg argued, if Gove commissioned a green paper for consultation, he would “come to realise that there is really no need for any significant reform at all.” Most of the “problems” associated with the act can be addressed without abolishing it. For instance, greater clarity on Section 2 of the act, which requires judges to “take into account” European court decisions in their judgments, can be achieved without legislative reform.

Thorny individual issues such as prisoners’ voting rights will still be tricky, but given that a straightforward repeal of the act would not eliminate the effect it has via case law, it would make more sense to oppose such issues on a case-by-case basis rather than try and reset English law to its pre-1998 position – a herculean task that could have myriad knock-on effects.

For one, a straightforward exit from the convention would be a constitutional nightmare. Our participation in it is entangled with the terms of the Good Friday agreement and the devolution settlement there requires UK membership of the convention. Beyond that, the foreign policy consequences of leaving it would be disastrous, as this would significantly undermine the ability of the UK to exert global leadership on human rights issues.

The Conservatives do at least seem to realise that abolition is no simple matter, and that moving away from Europe on human rights has its limits. While the party’s 2015 manifesto proposed the bill of rights and abolishing the act, it didn’t mention full withdrawal from the European Convention which the act is designed to enshrine in UK law.

The European Court of Human Rights. CherryX via Wikimedia Commons, CC BY-SA

A rough ride ahead

Despite the threat to civil liberties and constitutional problems that would open up questions about deportation, extradition, and rights on access to justice, there could be an upside to a serious debate on what a British bill of rights would look like.

There are those who argue that a debate on this could be a chance to engage the public in why rights are important and imbue the result with a real sense of public ownership.

This is certainly possible. As the independent commission identified in its report, the HRA has never enjoyed genuine public legitimacy. In the context of much greater devolution within the UK and a massive change in Britain’s relationship with the European Union, there is going to be an ongoing process of constitutional debate which debate over a British bill of rights could compliment. Martin Howe, a leading barrister who helped draft plans to scrap the HRA, recently said that a 40-page draft outlining such a bill was already in existence – but would needs years of consultation.

The problem with all of this is that Gove apparently wants to move quickly and incorporate proposals for abolishing the HRA in the next Queen’s Speech on May 27. This imperative shows just how hostile the Conservative Party is to the HRA, even though its opposition has so far resulted in a series of reactionary spasms rather than a detailed constitutional reform programme.

Given all the obstacles mentioned above, there is a real risk that we could end up with only a very minor series of reforms which do not address the eurosceptic political sentiment behind the calls for abolition. On the other hand, if Gove and Cameron forge ahead regardless of the consequences, we could see a dramatic lurch to the right with a wholesale abolition of the act, which would tee up a major fight with the Council of Europe.

In either event, the wafer-thin Conservative majority and the competing wings of the party plus the importance of the act to the opposition parties in the new parliament will make this process a very rough ride.