Devolution : Last Stand of the Human Rights Act?

(Pic : via Flickr)

One Conservative manifesto commitment prior to their election victory was the repeal of the Human Rights Act 1998 and its replacement with a "British Bill of Rights" - possibly including a subsequent full withdrawal from the European Convention on Human Rights (ECHR) if certain demands aren't met. The task has been passed to new Justice Secretary, the shy and retiring Michael Gove.

As picked up by Daily Wales, this could have an impact on the devolution settlement.

Last October, the National Assembly debated human rights just as the Conservatives announced the proposal (Human Rights on the Assembly Agenda). Several AMs criticised the policy, with Mick Antoniw AM (Lab, Pontypridd) going as far as describing the Human Rights Act as the "jewel in the crown" of Labour's time in office and something that "can't be cherry-picked".

Communities & Tackling Poverty Minister, Lesley Griffiths (Lab, Wrexham), said the Welsh Government "would do everything in their power" to oppose a withdrawal from the ECHR (though nothing was said on the Human Rights Act). The National Assembly also approved a motion rejecting any changes to human rights laws.

Jump forward to Tuesday's First Minister's Questions. Simon Thomas AM (Plaid, Mid & West Wales) asked the First Minister (clip) if he believed the Human Rights Act should be retained?

Carwyn said "yes", adding that work had been done on a British Bill of Rights "some years ago" and nobody had a clue "how it would work alongside devolution". He didn't entirely dismiss the idea, saying we needed to wait and see what would be proposed.

There was a more extensive exchange (clip) between the First Minister and Welsh Lib Dem leader, Kirsty Williams AM (Lib Dem, Brecon & Radnor). Kirsty said the UK Government wants to reduce the UK to the status of Belarus and Kazakhstan (two of the only countries not to have signed up to the ECHR). Kirsty also quoted a QC who suggests the Government of Wales Act would need rewriting.

The First Minister replied that it would make the UK "look like a banana republic", pointing out it was an essential part of the Northern Irish devolution settlement (for obvious reasons). Although non-committal on whether he would directly oppose any changes, he said there should not be a situation created where "current rights are eroded".

What is the Human Rights Act?

The Human Rights Act enabled human rights cases to be heard in UK courts instead of Strasbourg.
(Pic : uklhumanrightsblog.com)

Following the horrors of the Second World War, the newly-created Council of Europe (an entity completely separate from the EU – this is not an EU issue) drafted the European Convention on Human Rights – an international treaty (pdf)  to guarantee the rights of citizens in Europe. It created a European Court of Human Rights (based in Strasbourg) to have jurisdiction over relevant cases in, or between, the 47 signatory states.

The ECHR has 18 articles granting citizens in signatory states basic rights and freedoms including, but not limited to : a right to life, freedom from slavery and torture, freedom to marry, the right to a fair trial, a right to privacy, freedoms of expression, religion and assembly (i.e. to form a trade union).

The Human Rights Act 1998 was introduced to enshrine the ECHR in British law. This meant human rights cases could be heard in British courts and wouldn't have to go to Strasbourg. It banned public bodies from acting in any way which infringed the ECHR - including the devolved administrations. It also officially abolished the death penalty for all crimes (Life, Ethics & Independence VII : Capital Punishment).

The Human Rights Act & Devolution

No legislation can be passed in any devolved nation without it meeting the requirements of the Act or the ECHR (Part 2, Section 81 of the Government of Wales Act 2006). It's therefore – even if human rights aren't explicitly devolved to Wales (though they are understood to be in Scotland because they have a separate legal system) - an integral part of each devolved settlement.

Wales, Scotland and Northern Ireland have to grant permission to the UK Government whenever the UK Government wishes to legislate in an area of devolved policy – known as a Legislative Consent Motion, or LCM (also known as a Sewel motion in Scotland). Most LCMs are uncontroversial and are waved through by the National Assembly with a minimum of fuss.

It's unclear whether a repeal of the Human Rights Act would require an LCM. As it's such an integral part of the devolution settlements it's unthinkable that Whitehall would press ahead without at least consulting the devolved governments - if not going the whole way and getting the approval of the devolved legislatures too.

The Scottish Government said recently they would refuse to pass an LCM repealing the Human Rights Act. Whitehall could attempt to force it through in Westminster alone, but I'm sure a Conservative government Scotland overwhelmingly rejected forcing changes to something as fundamental as human rights will inch Scotland even closer towards the exit.

Then there's Northern Ireland. It's been said that repealing the Act would breach the Good Friday Agreement, which included sections relating to the ECHR and protection of minorities, as well as binding the UK Government to enshrine the ECHR in law (the Human Rights Act). The Irish Government have already said they'd safeguard the Agreement, but this alone will be a weighty challenge that could prove to be a major stumbling block for the whole Conservative proposal.

As you can tell from earlier, Carwyn Jones' response was glib compared to Scotland or Northern Ireland but it's obvious the Welsh Government oppose the proposal too.

Why change it?

The legal interpretation of human rights laws have caused considerable
embarrassment to successive UK governments - but are they missing the point?
(Pic : ITV)

There've been a small number of high-profile cases where convicted criminals and extremists have used human rights laws to run rings around justice system, causing embarrassment to successive UK governments. For example, suspected and convicted terrorists have blocked deportation proceedings and control orders because they have families living in the UK or could be at risk of torture in another country (there are rights to family life and freedom from torture). Others have been awarded compensation for false imprisonment....when it's found they did nothing wrong.

There's also been a lot of crap reported – like a car thief besieging a roof being given KFC and cigarettes by police, not because it's a standard police negotiating tactic, but "to protect his 'ooman rights'" . You couldn't make it up! Political correctness gone maaaaad!

We don't know precisely what will replace the Human Rights Act, though it's been reported that the draft Bill of Rights will strip or reduce the human rights of foreign nationals as well as certain suspected and convicted criminals....presumably they're somehow not human. It will also likely justify civil liberties abuses in the name of national security, aided by the forthcoming (so-called) "Snooper's Charter". So we would no longer have universal human rights which apply to every member of the species, but a set of narrowly-defined and politically-convenient "rights and responsibilities". That's not open to abuse at all, is it?

Many parts of the tabloid press criticise the Human Rights Act because of the right to privacy, which limits their ability to spy on celebrities or other public figures. Sometimes this is done in the public interest, other times it's nothing but an attempt to shift papers. Former FIA boss, Max Mosley, successfully sued Rupert Murdoch's News Group Newspapers for breaches of the ECHR on privacy and freedom of expression grounds when they published details about his sex life.

However, some outlets which are cheerleaders for a repeal of the Act – like News Group Newspapers' The Sun – have, ironically and hypocritically, used human rights laws to protect the privacy of their journalists from anti-terror legislation.

Repealing the Act on its own doesn't mean the UK will withdraw from the ECHR (though it makes it much more likely). It would mean that human rights cases would have to go to Strasbourg to be heard, making it harder to bring some cases to court due to the increased costs - a local example being the libel proceedings between Carmarthenshire Planning's Jacqui Thompson and Carmarthenshire Council (Jacqui's defence/counterclaim was partly based on Article 8 of the ECHR). It will also make judgements from the Strasbourg court "advisory", effectively giving the UK Supreme Court final say on human rights matters.

Even now, with the Human Rights Act, the Strasbourg court can't change UK law - that's still the UK Parliament's role and why they successfully blocked giving prisoners the right to vote.

It's also worth saying that any "British Bill of Rights" will probably contain many of the same provisions as the Human Rights Act and ECHR - it could even expand upon them to include things like a right to trial by jury.

It would be wise for the Conservatives to spell out what exactly they want to do ASAP.