“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.” 

“We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights. It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society. But it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.” (Conservative Manifesto.)

There are three main obstacles to implementing these commitments.

First, any attempt not only to leave the court but also to scrap the Human Rights Act will meet ferocious resistance from a lobby far more well-connected, entrenched in Britain’s establishments, and capable of projecting its view than the teachers, with whom Michael Gove has previously scrapped.  The mass of M’Learned Friends and HugeFee QCs are a Blob to end all Blobs.  Status, careers and the kind of earnings that make a pleasant lifestyle in Camden or Islington possible are all bound up with the great revolving human rights industry.

Furthermore, parts of the judiciary are may well argue that Parliament cannot, in effect, end the Act and quit the court – even if a British Bill of Rights is introduced to prevent the return of the status quo ante 1953 (when the ECHR gained force in Britain).  This reflects a cultural shift in the law and lawyers that has been quietly taking place for the past 50 years, and its causes range even wider than our membership of the EU and the Court – hence the rise of judicial review.

Most judges and lawyers believe that Parliament is still supreme.  But not all act according to that belief: consider the case of Prince Charles, the “black spider” memos, and the courts – in which Lord Neuberger, the judge who ordered the release of the memos, concluded that, as Charles Moore has put it, “it is outrageous for the executive to override a court, and therefore the Act which allowed this override cannot mean what it says”.  “Strictly speaking, the judgement represents a constitutional crisis,” a source within the Government told me.

Second, it isn’t yet clear what voters themselves believe about the Human Rights Act and the court in the round.  Polls show big majorities against giving prisoners the vote and for quitting the ECHR.  But whether or not the public would line up decisively for the latter, in the event of a noisy campaign claiming that “the Tories want to take away your human rights”, cannot (by definition) be known.

Third, Ken Clarke, David Davis, Andrew Mitchell, Dominic Grieve, Damian Green and an anonymous Cabinet Minister have all indicated that they would oppose any attempt by the Government to leave the ECHR altogether.  On paper, that leaves David Cameron with no majority for such a move.  Although he might well be able to find backing among the Democratic Unionists and Ulster Unionists for it – and his majority is in practice larger than 12 – other Tory MPs would doubtless also not support it. But even if a bill gets through the Commons, there then awaits the hazard of the Lords…

All this constitutes what Sherlock Holmes called a three-pipe problem, and Gove has no doubt already got in a pound of the strongest shag tobacco from Bradley’s, and lost himself for a day perusing the texts of the Act and the Convention. (“My body has remained in this arm-chair and has, I regret to observe, consumed in my absence two large pots of coffee and an incredible amount of tobacco.”)

Our Baker Street-style hero will undoubtedly have reflected that he is infinitely less well-prepared to negotiate these obstacles than he was when went to the Education Department to pursue The Case of Vanished Standards.

Then, he was aided and assisted by a great mass of Dr Watsons, including Dominic Cummings, Henry de Zoete, Sam Freedman and Rachel Wolf.  He was more than ready for the task after his spell in opposition as Shadow Education Secretary.  Bills had been drafted.  Help had been given in the setting-up of the New Schools Network.  Other Shadow Ministers had been approached to try to ensure that – for example – building regulations didn’t slow the setting-up of free schools.

Gove has had no similar preparation this time round to help him grapple with, say, the enmeshment of the Human Rights Act with the Belfast Agreement of 1998 or the Scotland Act of the same year.  So what are his options?  Very broadly, there seem to be three options.

  • The minimalist position – namely, transferring the bulk of the Human Rights Act into the new British Bill of Rights, and do nothing very much about the ECHR.  The wording of the Manifesto seems to allow for this possibility, since our own Supreme Court is already “the ultimate arbiter of human rights matters in the UK” (see its own note on the matter).
  •  The maximalist position – in other words, lots of limits on the applications of rights, caveats, a “triviality test” for cases, and exit from the court if it and the Council of Europe strive against these measures (the Tory plan set out by Gove’s predecessor as Justice Secretary, Chris Grayling).
  • Something between the two – with a particular stress on, say, the prevention of cases being brought against our Armed Forces overseas, an end to exploitations of the Right to Family Life that allow travellers to occupy green belt land, or foreign criminals exploiting immigration laws. (See also Jan Zeber’s piece on this site today.)

Justice Department sources say that the Gove is still studying his equivalent of Holmes’s map of Dartmoor, and “hasn’t yet decided what he will recommend to David Cameron, or indeed what he yet fully thinks himself”.

They also insist that, contrary to some claims, there is no obstacle to Gove acting before the EU referendum takes place in 2017 – though Cummings points to the applicability of the EU’s own Charter of Fundamental Rights via the European Court of Justice (his blog on the matter is a must-read).

Whatever happens, Gove can be relied on to put together a team as dedicated as the one he assembled at the Education Department.  His friends already point to the developing work of Policy Exchange’s Judicial Power Project.

Ultimately, the decision about how to proceed will be taken not by our hero, but by the Inspector Lestrades in Downing Street.  The Justice Secretary is also a known “Outer”, and the interplay between his views on the EU and the ECHR will be a factor in whatever happens next.

Much as ConservativeHome would like Gove simply to crack on with Bringing Human Rights Home – which is one way of describing the Maximalist Option – the Government is in no position to do much in the Queen’s Speech other than send out exploratory feelers.

Zeber is undoubtedly right to argue in his article that the Justice Secretary should strive to take as much of the legal profession with him as possible.  He will also of course want to ensure that any decisions he takes aren’t vulnerable to judicial review…

36 comments for: Securing a Majority 7) Bringing Human Rights Home. Gove’s three pipe problem.

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