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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. * *
* 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. * *
* 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. . Authors:
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