After cases such as the Abu Qatada affair and votes for prisoners, the Tories have made much of their commitment to reform human rights law. Theresa May has pledged that the next Conservative manifesto will include a commitment to scrap the Human Rights Act (something the Lib Dems have so far prevented them from doing) and has hinted that a Tory government could withdraw from the European Convention altogether.
But after an inner-cabinet battle, sources suggest that the final reform package is likely to be more modest. William Hague, Dominic Grieve and Ken Clarke are among those who have warned that it would be untenable for Britain to become the first country to leave the convention (which it helped to invent) and to join Belarus as the only European state not under the Strasbourg court’s jurisdiction. Michael Heseltine put it well when I interviewed him earlier this year:
“I get as irritated as everybody does about the European Court of Human Rights, but of course that’s got nothing to do with the European Union. It’s a very difficult one, the European Court of Human Rights, every so often they come up with some absolutely gut wrenching decision and, in the end, you’re asked as a minister, and I was asked, ‘well shall we get out?’
“And then of course I remember why we’re in in the first place, and we’re in in the first place because in the 40s, long before the European Union come into existence in any form, we signed up to sending a signal to the countries, the peoples behind the Iron Curtain, that to the west was a rule of law and certain enshrined rights for people. So ‘yes minister , the question is, we do understand how furious you are with this judgement, do you want to be the first country to abrogate the treaty of human rights and send a signal, not just to the people of Europe, but to the rest of the world, whom you’re trying to improve, increase, encourage to improve their democratic and human rights records, do you want to be the first country to have torn up the treaty that made this all possible and led to the collapse of the Iron Curtain?’ And as a minister you tend to go a bit quiet at the stage.”
More likely, I’m told, is a British Bill of Rights, including a rewritten version of Section 2 of the Human Rights Act. This stipulates that UK courts must “take into account” Strasbourg’s decisions when making judgements, but is often thought to be misinterpreted. It is notable, then, that Sadiq Khan, Labour’s shadow justice secretary and a former human rights lawyer, has used a piece in today’s Telegraph to outline his plan to reform precisely this part of the law.
He writes: “The wording, contained in Section 2 of the Human Rights Act, very clearly states that our courts only have to take into account Strasbourg judgments, not be bound by them. This was extensively debated at the time in Parliament, and as the records clearly show, the Tories tried to change Labour’s wording, which would have actually resulted in our judges being bound by Strasbourg’s rulings. Thankfully, Labour defeated the Tories’ crazy plans.
“But 16 years on, I think we have to acknowledge that, at times, our courts haven’t always interpreted section 2 in the way we’d intended. Too often, rather than “taking into account” Strasbourg rulings and by implication, finding their own way, our courts have acted as if these rulings were binding on their decisions. As a result, the sovereignty of our courts and the will of Parliament have both been called into question. This needs sorting out.
“And it’s not just me saying that. Senior judges and former Law Lords have also raised concerns. Former Lord Chief Justice Lord Judge and former Lord Chancellor Lord Irvine both believe there’s a problem with how our courts have interpreted Section 2 of the Human Rights Act.”
He adds that Labour will use the 800th anniversary of the Magna Carta to make it clear to judges that “they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing.” Khan believes that this could be achieved through guidance alone, but does not rule out legislation.
In the piece, he also confirms Labour’s existing support for the Human Rights Act and the European Convention. While the Tories will undoubtedly seek to portray their support for a British Bill of Rights as a radical alternative to Khan’s proposals, the reality is that there may end up being little difference between them.
A Labour spokesperson told me: “Not only is this the right policy but it shows Labour has a positive reform agenda on human rights issues. We remain passionately committed to the Human Rights Act and to the European Convention, and these reforms will strengthen human rights here and abroad. On the other hand, the Tories are obsessed with doing down anything to do with human rights. They never tire of trying to outdo Ukip. Labour’s measured move will pre-empt any attempt from the Tories to claim to be fixing a problem which we have already sorted. But don’t be surprised if they still try, in an attempt to portray it as some grand negative attack on judges, courts, human rights and Strasbourg.”
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