What's this about the Tories scrapping the Human Rights Act?
They've been trying to do it for ages. Right-wing tabloids and Tory backbenchers have been incensed about the Act for years and David Cameron occasionally flirts with the idea of giving them what they want. He set up a commission to investigate replacing it with a British Bill of Rights at the start of the coalition, but Nick Clegg stuffed it with human rights supporters and it all ground to a halt. He seemed to get a second wind towards the end of the parliament and asked then-lord chancellor Chris Grayling to write something up. But it looks like the massive constitutional upheaval involved put him off and the whole thing was kicked into the long grass.
Until May 7th
Exactly. That unexpected Tory majority put the wind in their sails and Cameron wants to show he can use his first 100 days to deliver big Conservative successes. Michael Gove has been made lord chancellor and told to bring a fresh mind to the problem. Dominic Raab – a highly intelligent legal figure who is also strongly opposed to the Act – has been brought in as minister. Whatever it is the Tories plan to do, they're going to do it soon.
Surely we know what they're doing – they're going to scrap the Human Rights Act.
Right, but it's not as simple as that. All the Act does is incorporate into British law the European Convention of Human Rights (ECHR). This document is the beating heart of international human rights standards. It was signed in 1950, in the wake of the Second World War, to enshrine the basic standards of the civilised world. Ironically, it was predominantly a British document and indeed we were the first to ratify it. It allowed us to spread the rights we had enjoyed for centuries to other countries and add a few on top. In 1966, Britain gave its citizens the right to petition the European Court of Human Rights in Strasbourg directly. And in 1998, New Labour used the Human Rights Act to allow people to fight for their human rights in British courts without having to go to Strasbourg.
So getting rid of the Human Rights Act wouldn't automatically get rid of the European convention?
Nope. Gove and Raab could get rid of the Human Rights Act and replace it with the British bill of rights – but if we're still signed up to the European convention it'll be a mostly cosmetic change. That's not to say there won't be repercussions. British citizens would have to go all the way to Strasbourg for their cases instead of being able to fight them at home. British judges, who have proved quite bullish at standing up to Strasbourg, would be out the equation, so the UK would actually have less influence in international human rights law. But fundamentally, British citizens would keep the same rights they have always had.
After all the noise the Tories have made about human rights, they're just going to make a cosmetic change?
They're unlikely to be satisfied with that. It looks like they're going to try to adapt the rules around the European convention a bit, negotiate with the Council of Europe (which oversees the convention) and see if they can reach a compromise. If that fails, they'll go for the nuclear option and pull the UK out the convention altogether.
Exactly what are they going to try to adapt?
Well in truth the Tory plans are a bit of a mess. There's a policy paper they released in October, which was very aggressive and radical, and then there's the manifesto, which was more moderate. But when you get past the rhetoric, there's three key sentences which indicate what they're doing. One of them is legal nonsense and another is very vague. But the third would mean we definitely have to pull out of the European convention. This is a really complex and nuanced area of law, into which a lot of very messy political arguments have been applied, so trying to make sense of it is like swimming through mud.
Do I want to know more?
OK, tell me anyway. I'm strapped in. What's the nonsense argument?
Well the Tories say they want the UK supreme court to be "supreme in the interpretation of the law". This is just crazy talk. It already is supreme, as the name suggests. There is no higher court than the supreme court in British law and if there were Strasbourg would not be it. The supreme court does what it likes. However, if it comes to a ruling which Strasbourg thinks is not compatible with the European convention, then it will make that clear. But this is a political matter, not a legal one. It's for the government and parliament to consider what to do, not the supreme court. You can say that Strasbourg limits British sovereignty – it certainly does. But this has nothing to do with the supreme court. So this line means nothing.
What's the vague argument?
It's connected. The Tories have a problem with rules which state that UK courts must "take into account" rulings from Strasbourg. For a few years after the Human Rights Act was passed, British courts were actually quite shackled by Strasbourg, but that was a while ago. Nowadays, they’re pretty tough with them. Our judges often tell Strasbourg it’s wrong. In many cases, Strasbourg has accepted that and come up with a judgement which accords with the British position. The key term here is dialogue. It's a two-way street. Taking account does not mean, as the Tories seem to believe, that we always do what we're told. This line might mean something or it might not. It's so vague we just don't know.
OK, now what's the nuclear option. Oh and just for the record, so far this is clear as mud.
I know – hopefully it'll get clearer when we discuss this next bit. The Tories want Strasbourg judgements to be treated as "advisory" by Britain. Now that's a proper red line. The Council of Europe immediately made it clear that it couldn't accept that. If it did, the entire international system on which it is based would fall apart. If the Tories follow through on this, we'll definitely have to pull out the European convention.
The thing is, the sentence about making Strasbourg rulings 'advisory' is very interestingly written. It seems to be constructed in such a way that it gives the government an out. It says:
"Every judgement that UK law is incompatible with the convention will be treated as advisory and we will introduce a new parliamentary procedure to formally consider the judgement. It will only be binding in UK law if parliament agrees that it should be enacted as such."
Well here's the thing: the rulings only are binding if the UK parliament agrees.
When Strasbourg says 'your ban on prisoner voting is against the convention' or 'your retention of the public's DNA is against the convention' they are not telling the UK how to change the law. They are saying that there's a breach. It’s up the UK government to come up with an amendment to the law which makes it comply with Strasbourg. Parliament votes on it.
It’s not advisory – if we refuse to comply we are in breach. But it's part of a democratic process taking place at a parliamentary level. The decision by parliament is then taken to the Council of Europe, which then says 'yep that's fine' or 'sorry, but that's not quite enough to satisfy the ruling'. There's often a bit of back-and-forth and the Council of Europe frequently cuts its losses.
The idea of having a "new parliamentary procedure to formally consider the judgement" could actually be a really good one. Having a parliamentary committee come up with suggestions for how to respond to a Strasbourg ruling would be much more democratic and transparent than having the government do it behind closed doors.
But the crucial thing is this – when the policy paper gives further details about 'advisory', it then states a system which is basically the same as the one we already have. That's either because it was written by someone who is illiterate in human rights law or because they were consciously giving the government the ability to make minor changes while still claiming it had done something radical.
OK, but what happens if they really are prepared to do what they say and the government tries to pull out the European Convention?
That's the nuclear option. It would involve Cameron finding a solution to four very big problems: the Commons, the House of Lords, the devolved assemblies and the EU.
As far as obstacles go, that seems pretty thorough
They are. So much so, in fact, that only a very brave betting man would put money on the Tories accomplishing it.
The first step will be the Commons. Human rights supporters believe the extent of a potential Tory rebellion over the issue has been underestimated. In the last parliament, with the Lib Dems standing as a shield against reform, Tories who were uncomfortable with the idea of pulling out the European convention could afford to keep their heads down. But this time, they're expected to make a noise.
They will be led by former attorney general Dominic Grieve. He'll be backed up by fellow Tory big beast Ken Clarke and probably David Davis, who recently told his local paper: "I think it is more likely there will be an argument over that than over Europe." While Grieve and Clarke are seen as on the liberal wing, Davis is well respected among backbenchers. He could prove pivotal to the fight ahead.
Campaigners privately say they're bullish about the prospect of getting Tory MPs to rebel and the SNP have already reportedly held talks with Tories who are considering it. There's a reason for their confidence – Cameron only has a 12-seat majority.
OK, but let's say the plans scrape through the Commons. What happens then?
The Lords. Here, the Tories have no majority at all. In fact, they are severely outnumbered. They have 224 peers, compared to Labour's 213 and the Lib Dems' 101. Now that the coalition is over, we can expect that Lib Dem voting block to shift firmly over to the opposition side on matters like this. Then there's the 26 bishops and 178 crossbenchers, who are more likely to break for the status quo than the radical new Tory plan.
But there is a caveat to all this. The 'Salisbury convention' states that the House of Lords will not vote down policies mentioned in the governing party's manifesto. That would seem to rule out peers voting down efforts to pull out the European convention.
But there's a caveat to the caveat, which is that the manifesto commitment is much weaker than that policy paper from last October. In fact, it doesn't mention pulling out of the European convention at all. So if the government goes for the nuclear option, peers will be able to say that it did not appear in its manifesto and vote against it.
But if they do back down?
Then the plans could very well be stopped in the Scottish parliament. The Acts of parliament giving power to the Scottish parliament and Welsh assembly presuppose membership of the European convention. And so does the Northern Ireland Good Friday Agreement. If the UK left the European convention, these would all need amending.
In the case of Scotland and Wales, it isn't a matter of law. It's actually a matter of convention, specifically something called the Sewel convention, which states that Westminster can't legislate with regard to devolved matters without the consent of the Scottish parliament. Given the SNP's desire to become the main opposition to the Tories, that seems a consent Westminster is unlikely to receive. Last October, the Scottish government said:
"The Scottish government is strongly opposed to any attempt by a future UK government to repeal the Human Rights Act or to withdraw from the European convention on human rights. To do so would require the consent of the Scottish parliament and, given our longstanding opposition, we would invite the Scottish parliament to refuse this."
The Cabinet secretary for justice in the Scottish government, Michael Matheson, has also been pretty clear:
— Michael Matheson MSP (@MathesonMichael) May 10, 2015
Could the UK government ignore all this, insist the Sewel convention is not law, and just force the changes through? Quite possibly. But in the words of one legal expert, the "constitutional implications would be horrific". Given how tense things are right now, it could even trigger new SNP demands for a referendum.
And then there's Northern Ireland. Here, change is almost impossible. The Good Friday agreement is an international treaty. Pulling Northern Ireland out of the convention would violate international law. Rewriting this document, which was hard-won in the wake of such a bleak and murderous period in the UK's history, is barely conceivable. Presumably even the most die-hard Tory opponent of the Human Rights Act would think twice before putting the Northern Ireland peace process at risk.
Westminster could try to put Wales, Scotland and Northern Ireland to one side and apply a different human rights standard in England. Given how immoveable the situation seems, that might be the only viable option. But it would set a remarkable precedent to strip English people of rights held by their fellow citizens and start actively separating out British legal standards between the countries of the union.
I'm exhausted. Please tell me what the EU obstacle is and then stop talking.
This one's a bit murky. Different people have different views on it. But basically, even if Britain did pull out of the European convention, it may still be subject to the same human rights laws via its relationship with the EU.
Up until now everything we've mentioned has been about Britain's relationship with the Council of Europe. The EU has had nothing to do with it. But the EU has its own (much broader) charter of fundamental rights and those are delivered by the European courts of justice in Luxembourg. And here's the thing: judgements from Strasbourg are used in the Luxembourg courts, which the UK would still be subject to even if it pulled out the convention. So there's a second route through which the convention's human rights laws could find their way into the UK.
If so, it would be much more limited than what we currently have. UK citizens wouldn't be able to take their case to Strasbourg, obviously. They would also likely be limited to actions by a state, rather than private bodies. And even then, only some legal experts believe it would have any impact. Some human rights campaigners insist it's not even a safety net.
Phew. So that's it? Please tell me that's it.
Yeah, that's it. It’s really not clear what the Tories are planning on doing, but it looks like they will fudge the issue a bit and pretend that what they have done is more radical than it really is. But if they do decide to go for the nuclear option and try to pull out the European convention they are in for a real fight. It wouldn’t be impossible, but it would be so hard, with so many obstacles, that you might as well call it that.