Human rights and Europe
Playing to the right
The Conservatives'plans to reform human-rightslaws are a muddle
“UNWORKABLE”, “contradictory” and “incoherent”.Those were among the epithets that have greeted the Conservative Party's plans to reformBritain's human-rights laws. The Tories have long wanted to scrap the Human Rights Act(HRA), passed in 1998 by a Labour government. On October 3rd Chris Grayling, the justicesecretary, promised to do just that as the Tories gear up for a May election in which theEurosceptic UK Independence Party (UKIP) threatens to lure away voters. In fact, the reformswill change less than supporters hope or critics fear.
The HRA incorporated into British law the European Convention on Human Rights (ECHR), whichBritain signed (and helped to draft) more than half a century ago. The act allowed Britons topursue human-rights violations in British courts, rather than going to the European Court ofHuman Rights in Strasbourg. Although demonised by the Tories as European interventionism,the HRA actually made it more likely that human-rights cases would be heard in domesticcourts, albeit in the light of internationally agreed principles.
Several decisions by the European court have particularly upset the Conservatives. The courtruled that Britain's ban on any prisoners voting was unlawful; it laid down that whole-lifesentences should be subject to review; and it insisted that Abu Qatada, accused of terroristoffences, should not be deported to Jordan without guarantees that neither he nor those givingevidence at his trial would be tortured. Eurosceptics and British tabloids have seized on thesecases as evidence of European meddling in British affairs.
The Tories say they will replace the HRA with a new Bill of Rights. They argue that Britain has along history of its own human-rights laws (including Magna Carta) and that the European courtis overreaching. The Conservatives want to limit the rights of individuals (notably foreigners)under the convention in certain circumstances. The European court's judgments would bemerely advisory as far as British courts are concerned. If the Council of Europe, the guardianof the convention, refuses to accept these changes, Britain would withdraw from theconvention.
In fact the ECHR has less legal power than first appears. International treaties are difficult toenforce, and the court cannot force Britain to change its laws even now. Prisoners do not havethe vote despite the court's objection to Britain's ban. The main problem is political; othermembers of the Council of Europe may not want to put up with Britain continually ignoring thecourt's rulings, as the Tories' proposals suggest they might.
Nor has European human-rights legislation proved as restrictive as critics suggest. In 2012, of2,146 foreign offenders ordered to be deported, just 256 successfully appealed on human-rights grounds. In the 16 years since the HRA came into force, domestic courts have made 28 “declarations of incompatibility”, holding that British laws conflict with the Europeanconvention. In 2013, of 1,652 British cases dealt with in Strasbourg, judges found violationsin just eight.
Without the HRA, the liberties enshrined in the European convention would still apply toBritons, who would then have to revert to going to Strasbourg about human-rights violations,as they did before its introduction. If the promised Bill of Rights were at odds with theconvention, appeals would multiply.
Even if it ditched the ECHR, Britain would still be bound by the EU's Charter of FundamentalRights, which draws on the convention. It would also remain bound by other internationaltreaties. The UN Convention against Torture prohibits deporting people to places where theymaybe abused. The Declaration of the Rights of the Child makes expelling foreign criminals withoffspring in Britain tricky. And, since the act was passed, at least some of the conventionrights–such as those not to be tortured or held indefinitely without charge–have become morefirmly rooted in English common law (which is based on precedent), argues Philippe Sands, alaw professor at University College London.
Devolution complicates matters further. The convention is incorporated into devolutionlegislation and the Good Friday agreements in Northern Ireland. Scottish police could thereforebecome subject to different human-rights obligations for crimes for which Westminster hasresponsibility (terrorism, say) and for those devolved to Scotland (most other offences). Havingsurvived the Scottish vote on independence, the Conservatives' proposals may shake theunion again.
Yet for those who bemoan Europe's influence, the court is a lightning rod for discontent. TheTory proposals look like a sop to them, ahead of an election. But the message that suchchanges would send is a bad one. Five countries, led by Russia and Turkey, were responsible formore than half the violations found by the European court last year. Getting them to complywith its rulings will be harder if Britain will not do so. For citizens of countries less committed tothe rule of law than Britain, the court sometimes offers a final hope.
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