Be Excellent To Each Other

The Queen’s Speech last week had one notable omission: the firm commitment of a new Bill within months to repeal the Human Rights Act 1998 for it to be replaced with a “British Bill of Rights”. Instead, there would be mere “proposals” and no Bill, and (yet another) “consultation” instead of enactment.

On the face of it, this omission was odd. The Conservatives have an overall majority in the House of Commons for the first time in nearly 20 years, and both the repeal and replacement were featured in the party manifesto. It would also be something that would “play well” with elements of the popular press and with many voters. The iron was hot, and it was ready for striking.

But it did not happen, and now it may never happen. Given that Commons’ majorities tend to decrease over time (and the Conservative majority is not that big to begin with), and given that constitutional reform will always tend to slip down the political agenda after any general election, the lack of firm proposals to replace the Act are politically significant. The Tories have lost their best chance this parliament at getting rid of the Act and putting in place something more to their liking, and the next general election will probably not be until 2020.

What explains this lack of legislation? The Conservative policy of repeal and replacement has been around since at least 2006 and as recently as last October the party published proposals for how it would go about implementing it. During the general election, and in the days after, reporters were briefed that the policy was a priority: indeed, it appeared that something would be done within “100 days”.

One way of explaining the failure is in terms of “high politics”: the interactions of opportunistic politicians seeking political advantages as events unfold. Here the focus is the slender Commons majority: once it was clear that some backbench politicians opposed repeal, at least on a rushed basis, and that opposition politicians would be firm, then brisk legislative progress would be impossible. It became a matter of simple arithmetic: if the Commons votes were not there it was better to drop or delay the proposal than to risk a needless defeat so early in the new parliament.

The Telegraph has provided a detailed and fascinating “high politics” analysis of the decision not to press ahead with repeal. Such analyses are important and should not be dismissed, and sometimes significant constitutional change (or lack of change) comes about just because of political manoeuverings. To take one notable instance, the passing of the Reform Act 1867 which enfranchised working men in towns and cities can be best understood by looking at Benjamin Disraeli’s improvised handling of the greasy pole of prime ministerial office so he could “dish the Whigs” and gain party advantage for a Tory party long excluded from majority rule.

However, “high politics” by itself does not explain the Conservatives’ failure to push through repeal of the Act and replace it with a British Bill of Rights — for even if the government had secured a majority of the Commons, there were other high hurdles to surpass (see here and here). These hurdles can be, in essence, divided between structural “constitutional” problems and those of legal substance.

The constitutional problems are immense. The Good Friday Agreement requires that in Northern Ireland anyone can go to a court and enforce their rights under the European Convention on Human Rights. One role of the Act is to give effect to this provision, and it is a provision dear to the nationalist community and their elected representatives. As neither amending nor breaching the Good Friday Agreement is sensible politics, then simple repeal of the Act across the United Kingdom is not possible.

There are similar problems in respect of the devolved administrations. In Scotland and in Wales, the administrations would insist that their respective assemblies had the right to withhold consent to the exercise. And while as a matter of constitutional theory the Westminster parliament could legislate anyway regardless of the protests of the devolved governments, such an abrupt and arrogant legislative act is not feasible in a post-devolution polity. The government is boxed-in.

But there is a deeper problem. The government does not have, as a matter of legal substance, any idea what to do. For nearly a decade, repealing the Human Rights Act (which can be blamed for Bad Things) and replacing it with a British Bill of Rights (which would only contain Good Things) has been a staple of Tory political rhetoric. Deriding the former and extolling the latter has long been enough for a Conservative politician to get an easy cheer. But converting this heady sentiment into hard law is not straightforward.

Indeed, one suspects that somewhere in Whitehall, there is somebody sitting in front of a piece of paper or computer screen, staring at the title “British Bill of Rights”. The rest of the paper or screen, is blank.

Why is there this disconnect between what is promised and what is to be done (or not done)? The reason is that there are, in fact, two Human Rights Acts.

The first is the real Act, a modest and short legal instrument, and one that is rarely relied upon by lawyers and courts in practice. Almost no case before the UK courts turns on it. The Act contains a (widely ignored) rule of statutory construction, that legislation be interpreted in accordance with the “convention rights” — the articles of the ECHR scheduled to the Act — and it includes a trite rule that public bodies cannot breach those “convention rights”. There is also a limp provision that UK courts must take account of (but not necessarily follow) the rulings of the Strasbourg court that supervises the ECHR.

And that is it. The real Act is a long-stop, so as to ensure domestic compliance with very basic international rights standards; and it provides the means by which domestic judges can deal with those few exceptional cases that affect fundamental rights and in respect of which the law is inadequate (for example, the “right to life” has meant that there should be a proper inquest into certain deaths). The real Act does not do a great deal, but it does enough, and so it is worth defending.

But the other, illusory, Act is a horrific monster, a terrible thing. Some right-wing politicians and tabloid journalists are quite sincere in their fear and loathing of human rights law. As AJP Taylor said of Bismarck’s reaction to the social democrats of his time, it is probable “Bismarck genuinely believed in the turnip-ghost which he conjured up“. Similarly, human rights lawyers are the bogeys of the Tory imagination, hiding beneath kitchen tables, waiting until dark so as to let in murderers and terrorists into the homes of hard-working people.

So the “debate” over human rights law currently features attempts to explain the nature of the real Act in the face of visceral loathing of the fictional Act, while those who seek repeal are destined to get nowhere because of legal and constitutional realities and the absence of any idea as to what the alternative would be.

This is all a pity, as, even taken at their highest, not one of the problems about the Human Rights Act actually requires its entire repeal as a solution; it is a shadow debate. For example, the Strasbourg court has found that the UK’s blanket ban on prisoner voting is in breach of the ECHR, but it carefully awarded no compensation. The law in the UK is unchanged, and the judgment can be shrugged off. It does not bind domestic courts. To say that there should be legislation to make the UK Supreme Court “supreme” on human rights law is to make a simple error: the UK Supreme Court is already supreme on human rights law.

So what will happen? The UK’s leading legal commentator, the wise (and invariably correct) Joshua Rozenberg, believes the government has now switched to a less urgent strategy, and that there will be eventual “tinkering” reforms disguised as some great reform. The human rights barrister and outstanding legal blogger Adam Wagner urges that the supporters of the Act not be complacent, and that attempts to repeal it have not gone away. And it is certainly the case that the prime minister remains fixated on the wrongs of human rights law.

On the other hand, there is every chance that the determination of the UK government to “do something” on human rights law will weaken as the parliament goes on. The new ministers at the Ministry of Justice are ambitious and clever, but their attention will quickly be engaged by the mundane but crucial problems of keeping the criminal and civil justice systems of England and Wales from collapse, and by the need to keep a failing prisons and probation service safe and somehow efficient and effective.

Soon there will not be enough time and resources in this age of austerity for justice ministers to go into glorious battle against turnip-ghosts. There is instead serious work to be done at the Ministry of Justice by serious politicians. If the new justice secretary Michael Gove and his team of ministers are sensible, it will be by managing that under-achieving ministry as well as it can be managed that they can make their lasting political mark.