The Human Rights Act

by Christine Bell FBA

24 Aug 2016

It has been a summer of cats. A Downing Street cat called Larry for around a week seemed the only symbol of continuity in government and policy in a post Brexit vacuum. However, another cat of Theresa May’s also lingered like a ghost in the background, and I wondered if and when he would materialise to assert continuity of anti-Human Rights Act policy. Now it seems he has arrived. But he has arrived into a very different post-Brexit world to that in which he first appeared. 

Yesterday, Justice Secretary Liz Truss, announced that the Government was still committed to a British Bill of Rights to replace the Human Rights Act.  This was somewhat of a surprise as a short time ago, ‘Whitehall speculation’ seemed certain that the plans had been shelved in the wake of Brexit due in no small part to concerns over the effect on devolution.

The shelving of the plans had themselves been somewhat surprising because Theresa May had been a fairly trenchant opponent of the Human Rights Act as Home Secretary. Indeed, her opposition was made famous by her rather selective account of a right to family life case in which a cat was mentioned. The speculators, however, reckoned that she just had enough on her plate and that re-opening the British Bill of Rights debate would raise more trouble with devolved regions already alienated by the Brexit vote given that they had voted ‘remain’.

This is a world in which Britain, for reasons of its own interests, has undermined one key post war peace institution for global cooperation. It would be understandable if there was nervousness about now beginning to undermine the other more value-driven post war institution – the Council of Europe. This is an institution which stands second only to the UN in promoting the universal values understood to have been so violated in the holocaust. In a real sense it has been a very British institution and a successful attempt to bring ‘the best of British values’ to the world. It not only played a critical role in the post second world war transition, but in the transitions in Eastern Europe.

Despite its British roots, those who ardently support Brexit often seem to understand anything ‘European’ as bad. Many of the Brexiteer arguments against the EU articulated opposition to court cases. Wittingly or unwittingly, they often referred to cases, not from the European Court of Justice of the European Union, but from the Council of Europe’s European Court of Human Rights. Unlike first year law students seeking a pass grade, they appeared not to have paid much attention to the minor detail of there being two different institutions, two different political projects, and two different courts. In what has been termed the new ‘post factual’ tendencies of political classes, this is a worrying starting point from which to defend human rights.

Yet, the ‘speculators’ in Whitehall who opined that it might be wise not to follow Brexit with the dismantling of the Human Rights Act, in particular because of the devolution implications, had a point. The European Convention on Human Rights and the Human Rights Act are woven into the fabric of devolution. The Convention underpins the devolution arrangements and puts in place a common floor of fair treatment across the UK, ensuring that a basic set of rights apply wherever one is in the UK, and whichever government is responsible for the legislation, policy or action. More spiritually the rights protected by the Human Rights Act are one of the few articulations of the fundamental values which underpin and ‘unite’ the United Kingdom in these precarious times. As Conservative MP Dominic Grieve has persuasively argued, the UK’s commitment to human rights plays an important role in supporting the global common good even beyond the UK’s borders – a concept in short supply at present - and is important to ensuring that countries such as Russia honour their human rights commitments. The irony of Theresa May’s cat, is that while it was used to point to the difficulty of deporting undesirables, when she was frustrated by the European Court of Human Rights in deporting radical cleric Abu Qatada to Jordan, on the grounds that evidence obtained in torture might be used against him, the ruling pushed her to an interesting solution. She required that Jordan give verifiable guarantees that unreliable and immoral torture evidence not be used against him, thereby ensuring a key change in that country. 

Post-Brexit we are now also all aware of the ways in which EU law is also closely interwoven with the fabric of devolution. Litigation is currently in train raising the devolved issues that arise in Northern Ireland – including the issue of protection of rights – from when and how Brexit is triggered. Cases such as this may start to clarify the terrain in which any debate over amending or replacing the Human Rights Act will take place. Brexit is likely to see a pre-run of some of the constitutional and human rights issues that face the UK, in ways that will impact on any Human Rights Act proposals.

Read the first two in a series of briefing notes addressing these issues.

Christine Bell FBA is Assistant Principal (Global Justice), Co-Director of the Global Justice Academy, and Professor of Constitutional Law and a member of the Edinburgh Centre for Constitutional Law, University of Edinburgh. She is the author of the British Academy's briefing Scotland and the British Bill of Rights Proposals

A podcast of Professor Christine Bell and Professor Colin Harvey discussion their briefings is available through the British Academy's soundcloud account. 

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