A very British scrap
Will Cameron and the Tories renounce the European Convention on Human Rights?
By Simon Lee
CAMBRIDGE, U.K. — The media reports that the British government is prepared to exclude the European Convention on Human Rights from governing its actions in times of war and terror. This has reignited the debate on the Conservative party’s election manifesto commitment to “scrap” the 1998 Human Rights Act, which requires British judges to “take account of” European Convention rights, as well as of the jurisprudence of the European Court of Human Rights.
The same pledge to scrap the Act had been made by the Conservatives in 2010, but was bartered away in the negotiations that led to a coalition government with the Liberal Democrats, for whom a commitment to human rights and European values were core principles. This year, the Conservatives might have thought they would continue to need a coalition partner, and that this electorally expedient yet politically awkward pledge could again be sacrificed.
Confounding everyone, however — and even themselves — the Conservatives won an outright majority. So awkward questions were asked: Would the Tories, now, actually move to scrap the Act?
The right-wing media knows that it dislikes foreign judges telling the U.K. what to do, especially on privacy or free speech. Rumors are rife that the government will reveal its hand before the year is out, even though it seems unlikely that it could command majority support for its pledge to scrap the Act in either House of Parliament. Its slender majority in the Commons would not be enough if senior lawyers in the party follow their instincts and principles in opposing the abolition of the Act. And the government is outnumbered heavily in the House of Lords.
Even though the constitutional convention is that the Lords will not ultimately defeat a government’s manifesto pledge, there are many lawyers, cross-benchers, and Labour and Lib Dem peers who mean to oppose this proposal to the very end (which might include, as well, the end of the unelected House of Lords). Even if Team Cameron did miraculously get a bill through the Commons and the Lords, there would be legal and political challenges based on the impact of such a change on Scotland, Wales and Northern Ireland.
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There are conflicting signals as to whether the government is really contemplating renouncing the (British-drafted) European Convention or simply its incorporation into domestic British law. At a time when politicians, journalists and campaigners are under pressure to challenge the Chinese premier, while visiting the U.K., on China’s idiosyncratic approach to human rights, it would be odd indeed for the U.K. to be simultaneously distancing itself from European human rights standards.
Nevertheless, the debate is nothing if not odd, and not without a generous dollop of ignorance. The British media and public have never been too sure which is the European Court of Justice (the one in Luxembourg) and which the European Court of Human Rights (the one in Strasbourg), or of how the European Union and the Council of Europe relate. But the right-wing media knows that it dislikes foreign judges telling the U.K. what to do, especially on privacy or free speech (which affect the media themselves), or on prisoners’ rights, terrorism or national security. Moreover, it is not that keen on British judges telling our politicians or journalists what to do, either.
The oddities are not all on one side of this debate. A familiar response has been to argue that any such notion of rule by judges in the U.K. is illusory because Parliament passed the Human Rights Act, and, therefore, could always repeal it. Now that the government might try to put that latter point into practice, however, the supporters of the Act have begun to deify it — and to suggest that it is an Act that may not be repealed, an exception to the time-honored doctrine of Parliamentary sovereignty.
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So what is going to happen? David Cameron appears to be reprising the role pioneered by Labour’s Harold Wilson as prime minister from 1964 to 1970 and then again from 1974 to 1976. Wilson was the politician who nearly took Britain into Europe and then nearly took Britain out. In his first term, he negotiated unsuccessfully with what was then the European Economic Community. He lost the 1970 election to Ted Heath who did secure the U.K.’s place in the Community. Then when Heath lost two elections in 1974 to Wilson, the latter held a referendum in 1975 on whether to stay. It was the U.K.’s first such referendum.
There are true believers in calling a halt to the march of judges.
Turning 18 that year, it was my first opportunity to vote. A clear majority (of which I was a part) voted to stay in the European Community. The conventional wisdom was that referendums favor the status quo. By waiting until we were in, Wilson and Heath between them connived to create the illusion of a popular mandate. If Wilson had asked in the 1960s whether we wanted to join, when President Charles de Gaulle of France was saying “Non” anyway, the U.K. public might well have echoed the Frenchman’s opposition.
Cameron’s variation on Wilson’s theme looks like nearly taking us out of what is now known as the European Union, but also nearly removing us from the reach of a different strand of European togetherness: the Council of Europe’s principal instrument, the European Convention on Human Rights. Most commentators find it difficult to believe that he wants to do, or will actually do, either. The art of the politician might well be to talk tough enough to win elections but to act soft enough afterward to absorb the need for compromise.
There are, however, true believers in calling a halt to the march of judges. Curiously, the most distinguished of these is himself a Supreme Court Justice in the U.K., Lord Sumption. A former Oxford history don, he has argued that our own commitment to the rule of law and human rights could easily survive without the Human Rights Act. In a lecture earlier this year, Lord Sumption also dismissed celebrations of the Magna Carta’s 800th anniversary as “high-minded tosh.” There is no shortage of robust language in this constitutional debate. In this sense, at least, the fight for the Human Rights Act is indeed going to be a “scrap.”
Simon Lee is a fellow of St Edmund’s College, Cambridge, and emeritus professor of jurisprudence at Queen’s University Belfast. .