Human rights should not be used as a political tool

We do not require instructions from judges in Strasbourg.” With this rousing expression of national pride, the prime minister delighted the Tory party conference with a promise that a Conservative-majority government would repeal the Human Rights Act (HRA) and replace it with a British Bill of Rights.

A Conservative document issued subsequently gave further details. The new Bill of Rights would re-enact the Convention rights but with “clarification” and “more precise definition”,
for example, to prevent foreign nationals from using human rights to resist deportation.

It would remove the UK courts’ obligation to “take account”
of decisions of the Strasbourg Court when interpreting the Convention and remove the requirement to interpret domestic legislation compatibly with Convention rights. The new Bill would also require UK courts to strike out “trivial” rights cases. Judgments of the European Court of Human Rights would
be “advisory”, becoming binding only if the UK parliament agreed to them.

The policy is incoherent, unnecessary and anti-libertarian.

The prime minister told the conference that he wants to “sort out” the court and return power to British judges and the UK parliament. But the HRA was designed to give UK courts the power to rule on human rights cases rather than making claimants go to the Strasbourg Court.

Most human rights cases
are now dealt with by our own courts, with fewer going to Strasbourg. Most that do end up there are declared inadmissible; the Strasbourg Court paying great deference to the domestic courts’ judgments under the “margin of appreciation” and “subsidiarity” doctrines.

Circumscribing the Convention rights and excluding altogether some cases would deny our judges the chance to apply the Convention in those instances and encouraging our judges to depart from the Strasbourg Court’s authoritative interpretation would increase the risk of conflict. Both measures would increase resort to Strasbourg, the reverse of the Conservatives’ policy aim.

The HRA contains an intelligent structure that provides effective protection while respecting parliamentary sovereignty. It does not allow our judges to strike down primary legislation, giving parliament the last word. While it requires courts to interpret laws compatibly with Convention rights, the judge must ultimately comply with the clearly stated will of parliament and, while it obliges judges to take account of judgments of the Strasbourg Court, it does not require them to follow Strasbourg slavishly.

The Law Society’s position is clear: human rights are not just for export, but start at home, and the Human Rights Act is
a vital tool in the domestic protection of fundamental rights. It has been a victim of
a sustained campaign of misinformation, such that its repeal is now seen as a vote winner. Our liberties are too important to be traded as a political crowd pleaser. SJ

Stephen Grosz QC is a senior consultant with Bindmans and chair of the Law Society’s Human Rights Committee