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‘A reckless and last-ditch attempt to assuage the Eurosceptics’ – The Justice Gap
August 16 2022

‘A reckless and last-ditch attempt to assuage the Eurosceptics’

‘A reckless and last-ditch attempt to assuage the Eurosceptics’


Act for the ActIn her speech at the State Opening of Parliament last week, the Queen once again announced the Conservatives’ plans to replace the 1998 Human Rights Act (HRA) with a British Bill of Rights.

There is a strong sense of déjà vu here; after a year in which the Conservatives have repeatedly failed to publish proposals or a consultation document for a British Bill of Rights, they are once more promising to push these proposals forward despite how dangerous and controversial they are. This looks like a reckless and last-ditch attempt to assuage Conservative Eurosceptic MPs in an effort to reunite the increasingly dissonant groups within the Party, which have surfaced prior to the EU Referendum.

Since the Conservatives pledged to repeal the HRA, Labour have been fighting these proposals and have sought to highlight that the HRA is an exemplary piece of legislation that helps and protects the most vulnerable individuals in society, whilst also ensuring that the state and other agencies are held to account for their actions.

Since the Labour Party introduced the HRA in 1998, it has helped victims of rape seek readdress again the authorities for ignoring them, held social services to account for failing child abuse victims, and enabled disabled people to challenge the Bedroom Tax. Most recently, the HRA enabled the bereaved families from the Hillsborough tragedy to secure a second inquest, at which the jury returned the verdict that the 96 victims of the disaster had been unlawfully killed. Because of the HRA, justice was finally given to the victims of the Hillsborough disaster and their families, who had fought for so long to uncover the truth about what really happened that day.

Vague – at worst divisive
From October 2014, when these plans were first announced, Labour has repeatedly sought to find out precisely what the Conservatives intend to include in a British Bill of Rights, and the implications of this Bill for our relationship with the European Court of Human Rights in Strasbourg and the European Convention on Human Rights (ECHR). However, the Conservatives have been at best vague and at worst evasive and divided over the content of the proposals.

This was recently highlighted by the Home Secretary, Theresa May, who announced in a speech about the EU Referendum that she was in favour of Britain remaining in the EU, but withdrawing from the ECHR ‘and the jurisdiction of its court’. May’s announcement signalled how great a divide has opened in the Conservative cabinet over this issue.

Whilst Gove has recently confirmed that he intends Britain to remain as a signatory to the ECHR, and is supported in this by Prime Minister David Cameron, May and other key Conservative MPs are strongly opposed to this stance. This split is one of several reasons why the government has not even begun the consultation process; they are aware that this will reveal yet more rifts in the Party and hence will highlight how little support there is for these proposals. Whilst some Conservative MPs, such as former Attorney General Dominic Grieve QC, will be relieved that the Government are not intending to withdraw from the ECHR, having publicly voiced their opposition to such a move, many others will be furious that the latest proposals hinted at by the Government do not include withdrawal. These MPs fear that without withdrawal, the sovereignty of our Parliament will be compromised, and that individuals will continue to abuse the system and bring spurious claims against our Government.

Act for the Act 2There are four areas of European human rights law that trouble the Government and lead them to claim that the system is being abused by individuals and does not work for ordinary people.

Firstly, the deportation of foreign criminals and illegal immigrants; many Conservative MPs believe that the ECHR prevents Britain from deporting foreign criminals and illegal immigrants on the grounds of Article 8, the right to private and family life in the UK, and thereby puts our national security at risk. However, Britain often deports illegal immigrants and foreign criminals, and is not prevented from doing so by the ECHR.

Our courts weigh up whether deportation of an individual is necessary and proportionate, and in so doing take into account whether the individual in question poses a threat to national security or social morality. If the individual is deemed to pose a threat, then this consideration may well outweigh the individual’s Article 8 rights and mean that they can be deported. Article 8 ECHR is thus more nuanced and flexible than many Conservative MPs claim. Moreover, Article 8 ECHR helps ordinary people on a daily basis; in the past it has given fathers the right to see their children, protected elderly people in care homes by giving them a right to dignified treatment and care, and has prevented the police from retaining excessive data about innocent people.

Similarly, many Conservative MPs have called for withdrawal from the ECHR on the grounds that it prevents our Armed Forces from doing their jobs properly when overseas, and allows foreign individuals to bring ill-founded claims against the Ministry of Defence (MoD). Secretary of State for Defence, Michael Fallon, recently claimed that our troops are weakened in their fight against terrorists because they fear that human rights lawyers will take them to court for actions committed in British-controlled territory overseas.

Fallon has therefore called for the ECHR to be temporarily suspended during armed conflict – a process known as derogation. Fallon claims this would prevent future human rights claims being brought against the MoD, and argues that other conventions, such as the Geneva Conventions, provide adequate human rights protection to our soldiers.

However, this is a falsehood. The Geneva Conventions would not have afforded the necessary protections to the families of soldiers involved in the 2013 case of Smith v Ministry of Defence [2013] UKSC 41, in which several British soldiers were found to have been killed either as a result of ‘friendly fire’ or the inability to check for hidden explosives, through poor training or inadequate equipment.

The families of these soldiers were able to use the HRA to sue the MoD for failing to provide the troops with adequate training and equipment. The court ruled that the MoD had breached their duty to protect the soldiers’ right to life by failing to properly protect them when they were at risk. Without the ECHR and HRA, the families of these soldiers would have been unable to obtain this ruling. Moreover, the ruling ensured that lessons were learned from this incident, and that the MoD would provide better protection to soldiers in future. It therefore seems absurd that the Conservative Party are seeking to repeal the HRA on these grounds, as doing so would strip our Armed Forces of their fundamental human rights whilst on active duty abroad.

The third issue which has led to the Government calling for the repeal of the HRA is the legality of lethal drone strikes outside armed conflict. In August 2015, Reyaad Khan from Cardiff was killed in a precision airstrike in Syria, because he was suspected of planning to carry out terrorist acts on British soil. David Cameron claimed this airstrike was made in self-defence, in order to prevent an imminent terrorist attack and was justified.

However, the Joint Committee on Human Rights recently published a report in which they called upon the Government to clarify the legal basis of this policy, and to ‘acknowledge that where the government takes a life where we are not in armed conflict, the higher standards laid down in the HRA and the ECHR have to be met.’

Several Conservative MPs responded with derision to this report, which they felt provided further evidence of the how the HRA and ECHR infringe upon Parliamentary sovereignty and put our national security at risk. However, Article 2 ECHR, the right to life, is not an absolute right and in certain circumstances provides a framework for lawful killing in order to prevent unlawful killing.

Article 2 recognises that actions such as that taken against Reyaad Khan, will at times be necessary, if for example, they are to prevent imminent and unlawful loss of life. Moreover, Article 2 ensures that violence is only used by the state outside of armed conflict when absolutely necessary, thereby prohibiting the use of needless force. Without the safeguards provided by Article 2, the state would be free to carry out targeted assassinations outside of armed conflict, without any checks or balances in place to ensure it was acting lawfully.

Finally, we turn to voting rights for prisoners; elements of the media and Government often misrepresent this case, claiming that Strasbourg ruled that all prisoners must be given the vote, including those serving life sentences for horrific crimes. This misrepresentation allows the Government to peddle the myth that the HRA only serves to protect criminals and terrorists.

In reality, however, the ruling from Strasbourg stated that a blanket ban on prisoners being able to vote was incompatible with the ECHR. Strasbourg recognised that in many instances it may be lawful to ban prisoners from voting. However, in their anger at this ruling being made against them, the Government has chosen to ignore the nuance of the ruling.

Yet the case on prisoners voting rights is one of few rulings that has gone against the government – the British government loses on average 1 in every 100 cases in Strasbourg. Moreover, the reality is that Strasbourg has now effectively conceded to the Government’s decision not to extend the vote to prisoners, meaning that this is no longer even an issue.

Therefore, instead of opposing the HRA on the grounds of this ruling, the government should instead accept that sometimes there will be rulings they do not agree with, and that this is an inevitability with a system as complex and universal as that of the ECHR.

Act for the Act 4Watering down fundamental rights
Yet despite the strength of feeling aroused in the Conservative Party by these issues, Gove’s hands are tied when it comes to withdrawing from the ECHR. Perhaps the greatest obstacle to withdrawal lies in the devolution settlements with Scotland and Wales, and the Good Friday Agreement. The ECHR is written into these settlements, and so any attempt to withdraw from the ECHR or repeal the HRA would require the consent of the devolved legislatures, which is highly unlikely to be given.

Without such consent, the British Bill of Rights would become the English Bill of Rights, which would be far less palatable to the government. Moreover, withdrawal from the ECHR could easily undermine the fragile peace settlement of the Good Friday Agreement, which is something the government should seek to avoid at all costs.

Finally, should the government seek to withdraw from the ECHR and cut ties with Strasbourg, they would face difficulties with the European Charter of Fundamental Rights. As highlighted by the EU Justice Subcommittee’s recent report, any attempts to curb rights under the ECHR would make challenges under the 2009 EU Charter of Fundamental Rights far more frequent. Withdrawal from the ECHR would therefore have the opposite effect the government intends it to, because the European Court of Justice (ECJ) has far stronger enforcement mechanisms than the ECHR. Whilst British courts must merely take into account the rulings of Strasbourg at present, the rulings of the ECJ are binding.

Therefore, given these many obstacles, Gove is likely to be forced to introduce a set of proposals that are greatly watered down, much to the aggravation of many Conservative MPs. It has been hinted that, under the new proposals, when there is a clash between British judges and their counterparts in Strasbourg, the final decision will rest with the British Supreme Court, whilst attempts may also be made to limit the rights of certain individuals, including illegal immigrants and foreign criminals. However, the final decision already rests with the British Supreme Court when there is a clash between British courts and Strasbourg; British judges are merely required to take into account the rulings from Strasbourg, but they are by no means binding. Furthermore, it is highly unlikely that Gove could provide rights to certain groups but not others, as they would then cease to be human rights.

Human rights are universal in both their definition and application, and a salient point of the ECHR is to protect minority groups whose interests would not otherwise be protected by the majority or the executive. Increasingly, therefore, the British Bill of Rights appears to be little more than a reckless and tokenistic attempt by the Prime Minister and Justice Secretary to engage in dog-whistle politics in order to pander to the right of their party and Eurosceptics MPs, by limiting the jurisdiction of human rights in Britain and abroad.

Labour recognises how important it is that we stand up for our HRA, and fight the government every step of the way in their plans to repeal it. Cases like the Hillsborough inquest highlight that the HRA serves ordinary people when there has been a miscarriage of justice and their fundamental rights have been violated. We need the HRA to support the citizen against the state, and to ensure that the government fulfils its duties to protect us when we need help. Britain has a proud history of human rights, dating back to the creation of the Magna Carta in 1215, and that is why Labour have always sought to protect and promote our fundamental rights, so that the people of our country are able to challenge abuses of power, unfairness and inequality.

However, this is not just about Britain.

The strength of our current human rights framework allows us to challenge human rights abuses abroad and to promote human rights across the world. Britain is a leading moral authority on the international stage, and this enables us to play a vital role in fighting against international crime and in working to ensure that the rights of vulnerable individuals and minorities are upheld. If the government repeals the HRA, this would severely undermine our moral authority and our ability to work with others to protect and promote fundamental human rights.  The human rights framework is ultimately a collaborative one, and one that only functions when everyone is working together.

The idea that the government is considering walking away from this framework is unthinkable. At a time when human rights abuses continue to be perpetrated abroad, in countries such as Syria, Russia and Saudi Arabia, it is more important than ever that we maintain our commitment to the HRA and the ECHR, so that we can work to eradicate these human rights abuses and ensure that the human rights of all individuals are upheld, regardless of who they are or where they come from.