The Conservative manifesto, on which all Conservative MPs campaigned at the General Election in 2010, stated:
“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
It is reported that Nick Clegg has reversed this: I am informed that the Human Rights Act will not be repealed and there will be no proper reform of our position towards the European Convention on Human Rights. When I was Shadow Attorney-General, I recommended, and my party accepted, that we repeal the Human Rights Act. It should not be up to judges to decide on crucial matters in our national interest.
It was clear Nick Clegg already got his way when the Coalition Agreement stated:
“We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”
That Commission has just been announced.
If the Commission is to look into a British Bill of Rights which deals with neither repealing the Human Rights Act or dealing with the European Convention on Human Rights, then what will it look into? In fact, it will be dangerous because a Commission suggests that they are dealing with the problem when in fact they are not. I said at the time how dismayed I was about the Coalition Agreement’s uprooting of our manifesto commitment.
I am told the Commission will discuss the possibility of a British Bill of Rights acting as a mere supplement – and not a replacement – for the European convention.
For all the reasons under discussion, we must be quite clear about the European convention. Geoffrey Robertson QC, a very distinguished lawyer who – as he said himself is not a known Eurosceptic – recently made it clear in a very important Standpoint article that we had to review the status of the European convention on human rights, and, as I understood his article, that we should legislate in Westminster to ensure that we strike the right balance in such matters.
As Robertson wrote of the European Convention:
“Besides, the need in 1950 for uniformity meant that some of our traditions had to be jettisoned — most notably trial by jury, an Anglo-American system that had found no place in the Code Napoléon… The European Convention also failed to include the rights Parliament won by the ‘Glorious Revolution’ in 1689, which were included in the Bill of Rights of that year. Its terms were ignored by ex-Speaker Michael Martin, for example, when he permitted Scotland Yard to raid the MP Damian Green's offices, and by two High Court judges who granted injunctions to Trafigura which would have prevented reports of proceedings in Parliament.”
Lord Hoffmann has said in a lecture (‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19 March 2009) that:
“The Strasbourg court, on the other hand, has no mandate to unify the laws of Europe on the many subjects which may arguably touch upon human rights… It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe.”
Only a year later, in a recent and seminal speech, the Lord Chief Justice also said
"Are we becoming so focussed on Strasbourg and the Convention that instead of incorporating Convention principles within and developing the common law accordingly as a single coherent unit, we are allowing the Convention to assume an unspoken priority over the common law? Or is it that we are just still on honeymoon with the Convention? We must beware. It would be a sad day if the home of the common law lost its standing as a common Law authority."
“We must beware”, so what are we going to do about it? A backbench debate was held in the House of Commons on Thursday 10 February – the motion which supported the continuation of the current ban on prisoner votes against the European Court of Human Rights ruling was agreed on a division by 234 to 22. So, it will be up to Conservative MPs to continue to reject what is happening and to argue for the right thing – the pledges in our manifesto, upon which we elected.
On the question of human rights, our manifesto committed us to the repeal of the Human Rights Act.