Too many u-turns, and your neck will ache as though you could put in for a whiplash claim.
At least, this is how I feel when it comes to the British government, and the British Prime Minister, Theresa May, in particular with regards to the European Convention of Human Rights (ECHR). Will they withdraw the UK from the Convention, or will they not? Will we have the so-called British Bill of Rights, or will we not?
It feels as though this hemming and hawing has been going on for years. That’s because it has.
It started in 2010, in the Conservative Party’s manifesto for the General Election. The party pledged to repeal the Human Rights Act 1998, and replace it with a British Bill of Rights. Sound familiar? It should: the same pledge was included in the party’s 2015 General Election manifesto. (The same manifesto which promised to hold a referendum on the UK’s membership of the EU, and look how well that one turned out.)
Why is the Conservative party so desperate to repeal the Human Rights Act 1998, and implement instead a British Bill of Rights? After all, the aforementioned Bill of Rights would undoubtedly contain rights already legally recognised and protected in the 1998 Act. But the 1998 Act enshrines the ECHR rights into domestic application, and the ECHR just feels ‘foreign’ to the Conservative party. It’s probably the ‘European’ in ‘European Convention of Human Rights’ that does it.
The thought process of the Tories seems to be that by scrapping the 1998 Act, any formal link between British courts and the European Court of Human Rights (ECtHR) will be broken, and so the British courts ‘reclaim sovereignty’. Moreover, the reasoning goes, severing this link and withdrawing from the jurisdiction of the ECtHR would empower the UK Supreme Court as the highest legal authority. Conservatives argue foreign nationals who have committed serious crimes are able to use the freedoms guaranteed within the 1998 Act to justify remaining in the UK. They have also expressed their concern at perceived overreaching by the ECtHR, attempts to overrule decisions made by the UK Parliament and the courts e.g. lifting the ban on prisoners’ voting rights, or banning whole-life sentences for serious crimes.
The Conservatives therefore plan to introduce this infamous British Bill of Rights rooted in “British values”. The Human Rights Act contains a “laudable” set of principles for a modern democratic nation, says the party, and it does not plan to introduce new basic rights. Instead, the intention is to restore common sense and tackle this apparent misuse of the rights contained in the ECHR. The Conservatives published a short strategy paper outlining some of the key ideas in 2014 and promised to publish a full draft bill before the 2015 general election, but this never materialised.
The fun fact is, there are major blocks before the Conservative government, and always have been. In 2010, it was their coalition partners, the Liberal Democrats, who refused to back the repeal of the 1998 Act. In more recent times, the Commons, the House of Lords and the devolved Assemblies are set to be headaches for the UK government.
In the Commons, it must be remembered that Prime Minister May holds only a thin majority. Any backbench Tory rebellion against a proposed repeal bill/introduction of a British Bill of Rights, any suddenly Mrs might find herself caught in a tight spot by a relatively small number of rebels joining Labour and SNP ranks. This isn’t unthinkable: several prominent Tories have already voiced their criticism, including former justice minister Ken Clarke and former attorney general Dominic Grieve QC. They have warned repealing the 1998 Act could undermine the rule of law and risks putting the UK into conflict with the European court. Even if any bill managed to scrape pass the Commons, the Tories are outnumbered in the House of Lords.
The devolved administrations would serve as a thorn in the side of the UK government. In Scotland, First Minister Nicola Sturgeon has repeatedly vowed to oppose the plans. In Northern Ireland, moves by the UK government to repeal the 1998 Act would breach the Good Friday Agreement, in direct violation of international law. (The Good Friday Agreement is recognised as an international treaty, and was lodged with the UN.)
The plans also contravene various national agreements. The Sewel convention dictates that parliament cannot legislate for devolved matters without the consent of Scotland and Wales. Pushing any proposed bill through would therefore violate this convention. This, and the breach of the Good Friday Agreement, would provoke a constitutional crisis in the UK.
However, none of the above seems to have deterred the Prime Minister, and her Cabinet, from pursuing their objectives. That is, not until the outcome of last summer’s referendum on the UL’s membership of the EU. Since then, we have seen an interesting turnabout in rhetoric and policy.
In December 2016, it was reported that Theresa May was planning on putting withdrawal from the ECtHR at the core of the 2020 Conservative general election manifesto. Before she became the Leader of the Conservative party, and Prime Minister, Mrs May had made clear that she wanted the UK to withdraw from the ECHR, and the jurisdiction of the ECtHR. In a speech in April 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 and does nothing to change the attitudes of governments like Russia’s when it comes to human rights”.
Yet during her leadership bid, Mrs May said pulling out of the ECHR was not something she could pursue in this Parliamentary mandate because of the Conservative’s slim majority.
And interestingly enough, the details of the Bill of Rights plans were initially drawn up by former Justice Secretary Michael Gove, who was sacked as part of Mrs May’s 2016 summer reshuffle.
Since becoming Prime Minister, it was then reported Mrs May planned to fight the 2020 General Election on a platform of leaving the ECHR. It was reported the Prime Minister sought to “lift and shift” rights protections so people in the UK could only seek rights protections in UK courts, not the ECtHR. It was also reported Mrs May “has decided that she cannot start that fight with the prospect of negotiating Britain’s exit from the European Union set to dominate Parliament over the next few years.” Therefore, Conservative plans to replace the 1998 Act with a British Bill of Rights were seemingly put on hold, albeit temporarily, because of the Brexit result.
The report also said:
A senior Government source said: “We would have been looking at having a huge row with a Parliament to get through the Cameron plan and we might even have failed. A clean break is by far the best option and, if we put it in the manifesto, even those Tory MPs who are squeamish about the idea will have to get behind it. A manifesto pledge also means the Lords will have to let it through eventually. All the signs are that the Prime Minister is up for this.”
You have to note the irony here: the Conservatives’ long-hyped promise to repeal the 1998 Act was admitted to have been temporarily shelved because of the delivery of another manifesto promise, that of the EU referendum.
But it does not end there. You see, come January 2017, it becomes apparent that perhaps the shelving of the plans was not going to be temporarily after all.
It was reported that Theresa May was preparing to permanently abandon plans for a British Bill of Rights after the UK leaves the European Union, because of the belief that Brexit would strengthen the sovereignty of UK courts.
Comments delivered in the House by Sir Oliver Heald, a Justice Minister, had suggested a decision on whether to introduce a British Bill of Rights will not be made until after the General Election in 2020. Yet, it was suggested the drafting and implementation of a British Bill of Rights is now unlikely to happen at all due to concerns that Mrs May would face a rebellion by Conservative MPs. And as previously outlined, all it would take is a small band of backbench Conservative rebels to cause trouble, given Mrs May’s slim majority in the Commons.
Of course, the Prime Minister could call for a snap election in an attempt to boost her majority. Whilst this is unlikely, it is not completely so: British Labour is struggling in the polls, and as the UK Supreme Court recently ruled the UK Parliament must be granted a vote on Art 50, Mrs May might think it better to increase her majority now for an easier life in the long run.
Whilst Mrs May and her Cabinet might have agreed to quietly abandon the plans to repeal the 1998 Act and introduce a British Bill of Rights, I wonder whether those who supported the plans within the Conservative backbenches will also stay quiet.
Mrs May imposed a March 2017 deadline to invoke Art 50, and thus commence the negotiations with the EU which would conclude with the UK leaving the EU. It will be interesting to see whether or not repealing the 1998 Act will be brought back, especially if there should be a snap election. Would this once more be a pledge in a manifesto?
Whatever happens, it must be noted that any move to withdraw the UK from the ECHR and the jurisdiction of the EctHR is something to be cautious about.