TORY PROPOSAL: 4. Define much more clearly when and how human rights laws in the UK are to be applied
This will end the ability of the Courts to decide unilaterally to apply human rights laws to whole new areas of public life.
- Parliament has already defined when and how human rights laws apply when it passed the HRA. The Convention rights have to be upheld by public bodies (e.g. police, social workers, Government departments etc) when dealing with members of the public. The Courts do not decide new areas of public life where they are to be applied.
TORY PROPOSAL: 3. End ability of the European Court to require the UK to change British laws
Every judgement against the UK will be treated as “advisory” and will have to be approved by Parliament if it is to lead to a change in our laws.
- The Court has no ability to require the UK to change British laws. Parliamentary sovereignty is intact, as made clear by the non-implementation of the prisoner voting judgment. But the British Government has ratified the Convention and so undertaken to comply with its international law obligations to respect the decisions of the Court.
- Treating judgments as “advisory” would put the legislation in direct conflict with our international obligations, put the UK on a collision course with the Court and mark the UK’s likely departure from the Council of Europe.
- This would do immeasurable harm to the international standing of the UK and weaken our political capital and influence in Europe.
- A parliamentary process to “approve” Strasbourg judgments is a dangerous precedent worthy of a totalitarian regime. Why not allow Parliament to “approve” judgments of the Supreme Court? In fact why bother with the Courts at all – why not have individuals come to Parliament to have their cases “approved” or rejected by Parliament?
- NB: Despite Conservative claims, Parliament has not actually rejected the Court’s prisoner voting judgment. It has not been asked to vote on a Bill on possible reform. In 2011, 256 MPs voted on a mischief-making motion on the issue but this is a fraction of the 650 MPs in Parliament. On the contrary, in December 2013, a cross-party parliamentary committee tasked with looking at the issue recommended that voting rights be granted to all prisoners serving 12 months or less. It concluded that there are no convincing penal-policy arguments in favour of disenfranchisement.
TORY PROPOSAL: 2. Break formal link between British courts and the Court of Human Rights
In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg. This will make the Supreme Court the ultimate arbiter of human rights matters in the UK.
- Britain’s courts are required only to “take account” of Strasbourg judgments, not to follow them. The HRA did not make Strasbourg a precedent-setting Court, as the proposals claim. This has repeatedly been made clear by Britain’s senior judiciary.
- British courts already regularly depart from Strasbourg jurisprudence to take account of UK laws, traditions and customs.
- This proposal will not increase the Supreme Court’s constitutional standing. It is already the ultimate arbiter of human rights cases in the UK but, if we remain part of the Convention, British people will still be able to take claims to Strasbourg once domestic litigation is exhausted. The dilution of Convention rights proposed makes it more likely that Strasbourg will find against the UK.
- The Conservatives have done a political u-turn on this issue - when the Human Rights Bill was passed they tried to amend it to say that British Courts “shall be bound” by Strasbourg but this was ultimately, sensibly, rejected by Parliament.
TORY PROPOSAL: 1. Repeal Labour’s 1998 Human Rights Act
- The HRA increased British sovereignty. Pre-HRA, UK cases were argued in Strasbourg without any judgment from a UK court. Post-HRA, British judges now rule on all human rights claims arising in the UK and influence Strasbourg jurisprudence in those cases that proceed to the Court. Repealing the HRA and passing a BBR with amended rights will increase Strasbourg’s supervision of the UK, making it more like a Court of first instance once again.
- Repealing the HRA will cause fresh upset for the Union. It will not include Scotland (as the SNP has confirmed that it will not repeal the HRA in Scotland) and a proposed “British” Bill of Rights will risk tensions in Northern Ireland. It may end up being a Bill of Rights for England and Wales.
- The HRA is not “Labour’s Human Rights Act”. It was passed with overwhelming cross party support and Tory leadership endorsement. It is deeply un-Conservative to propose a constitutional bill of rights that is nakedly partisan.