Concerns grow over government plans to curtail role of European court
Patrick Wintour and Alan Travis
The Guardian Weekly 29.05.15
The new shadow lord chancellor, Lord Falconer, has predicted that the Lords will throw out any attempt by the new justice secretary, Michael Gove, to replace the Human Rights Act. Falconer, speaking with the authority of the shadow cabinet, warned last Friday: “The Lords over the past 20 years have come to see their role as guardians of our constitution, and if the Conservative measures strike at fundamental constitutional rights the Lords will throw this back to the Commons.”
It was expected that a new British bill of rights would be included in this week’s Queen’s speech. Falconer said that the Lords, where the Conservatives do not have a majority, would be within its rights under the Salisbury convention to throw out any measure altogether – since the Tories’ intentions were only set out vaguely in their manifesto. If the Lords rejected a bill the governmemt would need to use the Parliament Act, probably in 2017, to force the bill on to the statute book without the Lords’ consent.
Falconer argued: “The basic pitch that the Tories are making…is that you can have some form of British human rights that don’t involve things that are quite unpopular – such as not being able to deport terrorists if those people are going to be tortured or killed when they get home. But you cannot have reliable human rights if the only human rights that survive are those that the executive are happy to tolerate, and not the human rights that are inconvenient to the executive or unpopular.”
The Tory election manifesto outlined a commitment to scrap the 1998 Human Rights Act and curtail the role of the European court of human rights. But the legislation is in an area filled with international and legal minefields. A policy paper was published last October – but it is only eight pages long and raised more questions than it answered. A 40 – page draft bill, which has already gone through seven editions, is in existence but the final legislation, which must detail how it is to be implemented, is expected to have to run to hundreds of pages.
The policy paper promised to repeal the 1998 Human Rights Act and put the text of the original 1950 human rights convention into primary leglisation. It promised to clarify convention rights “to ensure they are applied with their original intentions”.
It promised to break the link between British courts and the European court of human rights, limit the use of human rights laws to the most serious cases and limit their reach to the UK so, for example, British armed forces overseas were not subject to human rights claims. Yet it gave no indication as to how this partial withdrawal from the jurisdiction of the European convention on human rights might be achieved nor did it take into account the possible reaction from the Council of Europe, which overseas it.
Falconer described the plans as a dishonest muddle, and said with an overall Commons Conservative majority of 12 and some Tory MPs uneasy, there was a “question mark” over whether such a bill could get through the Commons without defeats.
The appointment of Gove, along with that of Dominac Raab, a maximalist Consertive libertarian, as justice minister, suggests David Cameron recognises the large intellectual, legal and political hurdles in turning the manifesto commitment into law.
Withdrawal from the convention would send “an appalling signal”, Falconer said, adding: “It would confirm to so many countries in the world that adherence to human rights is wrong and they could forever cite the UK”.