Grayling’s Human RIghts Law is a stupid and incoherent gimmick that could destroy the Union

Chris Grayling announced today that the Conservative Party will fight the next election on a promise to introduce a “British Rights and Responsibilities Bill” that will “completely change the way in which our human rights laws work.”

In essence his plan is to make the European Court of Human Rights “only an advisory body in the UK – able to make recommendations to us and no more.”

He plans to do so, if possible, without leaving the Convention:

… we will discuss our plans with other European nations, and engage with them on how we intend to handle human rights matters in the future. We hope they will accept our plans. But if they cannot, then we will invoke our treaty rights to withdraw from the Convention altogether, to coincide with the passage of the new Bill into law.”

There are so many problems with Mr Grayling’s ideas that it is hard to know where to start but the idea that we could remain part of the Convention while treating the rulings of the Court as “only advisory” is as good a place as any.

There are two issues here, which the Justice Secretary almost always manages to confuse: the effect of the Convention on the United Kingdom as a matter of international law, and the status of the Convention in UK domestic law.

The rulings of the Court are, and have always been binding on the British Government in international law. Mr Grayling is fond of saying that the Convention is used in ways that were never envisaged when it was introduced but Article 53 of the original convention, [now article 46 (1)] provided:

The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

It would be absurd to characterise this provision as an infringement of sovereignty. It was no such thing in 1950, and it is no such thing today.

Countries have been making international treaties for hundreds of years, and nobody suggests that agreeing to abide by them is inconsistent with national sovereignty.

To take but one example, the United Kingdom is a signatory to the General Agreement on Tariffs and Trade (“GATT”). Like the European Convention on Human Rights GATT has a disputes resolution procedure which the British Government abides by. It does not, of course, deal with newsworthy issues such as whole life tariffs for prisoners but with dull things like tariffs on cotton imports. International law and international relations cannot operate if states sign up to treaties and then say they will not be bound by them.

What rights does Mr Grayling want to reduce? He says that his Bill will:

Stop Article 8, the Right to Family Life, being used for purposes it was never intended. It should not be used by an individual to say that their right to family life allows them to override the law that applies to every other citizen, for example travellers occupying green belt land and claiming human rights trump planning laws. Or a similar situation with a foreign criminal and our immigration laws. Everyone must be subject to the same law of the land, no exceptions.”

This is not very clear. On the one hand the Justice Minister is saying that “everyone must be subject to the same law of the land, no exceptions,” whilst on the other hand he seems to be suggesting that there should be a whole host of exceptions including “travellers” and “foreign criminals”. Elsewhere in his statement he says “there will be a triviality test stopping human rights laws being used for minor matters,” which again would seem to create plenty more exceptions. Nevertheless, if his statement means anything it means that the operation of the European Convention in Britain will be restricted in certain cases, and that the Government would ignore the Court’s rulings in others. This would put the United Kingdom in breach of the Convention.

It is, of course, generally possible for a State to leave a treaty and the ECHR is no exception. It would be coherent, if in my view mistaken, to leave the Convention. It is incoherent for a country to announce unilaterally that it will no longer regard itself as bound by a Convention to which it remains a signatory. It would be like agreeing to take part in a game of cricket and announcing halfway through your innings that you would no longer regard the umpire’s decisions as binding.

Mr Grayling’s other main complaint is that:

Our Courts now treat the Convention, and the interpretation of it in Strasbourg, as sacrosanct.”

This is legal nonsense. Neither the Convention itself nor the Human Rights Act make rulings of the ECtHR in Strasbourg sacrosanct in British Courts. The Act does require the Courts to “take account” of (amongst other things) any:

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights ….

But being required to “take a judgement into account” is an entirely different matter from treating it as “sacrosanct”. Thus in R v. Horncastle [2009] UKSC 14 the UK Supreme Court took into account judgments from Strasbourg and expressly declined to follow them on the question of whether there could be a fair trial where witnesses were not available to be cross-examined.

Mr Grayling’s statement does not begin to address the extraordinary constitutional problems that his plans will produce.

Theses were most recently spelt out in a compelling piece by Colm O’Cinneide of University College London. In essence it is this: “The devolved legislatures and executives in Northern Ireland, Scotland and Wales are required to comply with ‘Convention rights’ by virtue of specific provisions set out in the devolution statues.”

For this reason a “British Bill of Rights” would either have to over-ride the Scottish, Welsh and Northern Irish legislatures, or it would have to concede to them, or some of them, the right to continue to apply the Convention in their own way within their own countries. The prospect of an English dominated government “removing” human rights from a Scotland, Wales or Northern Ireland that wanted to retain them hardly bears thinking about. On the other hand, if it did not do so, it would not be a British Bill of Rights at all, but an English Bill of Rights. Either way, the effect on an already fragile union would be significant, and it might well be catastrophic.

Leaving the European Convention might also have an effect on our relationship with the EU. Membership of the Council of Europe – in effect signing up to the European Convention – is a requirement of EU membership. As a result it seems highly likely that if, as Mr Grayling’s plan threatens, Britain were to decide to leave the Convention its EU membership would thereby be put in jeopardy. “So much the better” some would say. But if we are to leave the EU we should do so after a referendum in which all the various arguments about the advantages and disadvantages of membership have been properly considered, not as an unintended – or worse still a concealed – consequence of a British Rights and Responsibilities Bill.

Mr Grayling’s proposals are a populist gimmick that would, if implemented, reduce the rights of the most vulnerable, reduce the country’s international standing, lead to years of arid constitutional wrangling and ultimately, in all probability, lead to the destruction of the United Kingdom.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

8 thoughts on “Grayling’s Human RIghts Law is a stupid and incoherent gimmick that could destroy the Union”

  1. Grayling and Theresa May are the very reason that Americans take pride in their second amendment. Oppressive monsters like these are unfit to hold office in a democracy and we really need to be able to defend ourselves against their terrifying ambitions.

    ‘Brutish’ is a polite term. He’s thick, irresponsible, unqualified, cruel and brings shame on Britain every day. I’d go so far as to say that he is a traitor to Britain and our values.

    Politics.co.uk has done an excellent job of cataloguing his almost daily abuses of the vulnerable. He is a shockingly bad minister, as out of touch as the Bullingdon Club members but a pleb with it!!

    http://www.politics.co.uk/blogs/2014/10/02/the-lord-chancellor-is-dismantling-the-rule-of-law

  2. Neat solution, DH.

    Except that Human rights are a fundamental part of the devolution arrangements. The people of Scotland, Wales (twice) and Northern Ireland voted in referendums to adopt constitutional settlements which embedded Convention rights in the way the devolved legislatures and administrations operate.

    So, you would need them to vote again before changing those arrangements to omit human rights. I would not bet on them deciding to give them up.

  3. Matthew,
    How do you reconcile the obligation under Article 46(1) to “.. undertake to abide by the final judgment of the Court in any case to which they are parties” with s.2(1) of the HRA which merely requires a court to ‘take account’ of rulings by the ECtHR? And if proponents of the current HRA think that ‘take account of’ equates to ‘abide by’, why does the Tory proposal for Parliament to have to consider (take account?) of adverse ECtHR rulings offend them so much? Surely it is better that the black letter law should be amended than that precedence is heaped upon precedence. Of course clever HR lawyers thrive on using and stretching precedence to fit their particular needs, whereas clearly written black letter law provides less room for manoeuvre, so I suppose I have answered my own question.
    And thank you for treating your readers with some respect and not insulting their intelligence (vide Nick Cohen in yesterday’s Guardian – http://www.theguardian.com/commentisfree/2014/oct/04/tory-wreckers-out-destroy-human-rights) by strongly implying that the Tory proposal = the end of HR protection. Such arguments deliberately muddy the waters, and rather overlook the 47 year period (1953 – 2000), three times as long as the post HRA period, in which we in the UK appear to have been observing our obligations towards the Convention without any problem.
    However I think your ad hominem attack on Chris Grayling weakens your argument.

    1. Thanks for your comment Andy. Art 46 & S.2 apply to different things.

      Art 46 requires the signatory states to abide by the judgements of the ECtHR, whereas S.2 of the HRA merely requires domestic courts to “take account” of Strasbourg’s rulings. In practice, the rulings of our own Supreme Court and Court of Appeal (which are binding on the lower courts) are far more important than rulings from Strasbourg.

    2. Thanks for your comment Andy. Art 46 and S. 2 of the HRA are reconciled like this: Art 46 applies to the signatory states; S.2 (1) of the Human Rights Act applies to domestic courts. The states themselves have agreed to abide by the rulings of the EctHR (paying compensation, changing their law where necessary). However the domestic courts do not have to follow the rulings, as long as they take account of them.

      I’m not sure why you think I’ve made an ad hominem attack on Chris Grayling. I thought I was playing the ball not the man but I suppose we’d have to look to the ref to decide that one.

  4. Thanks for the clarification, on Art 46 & s 2. In many ways your answer strengthens my belief that the HRA does little to meet the Art 46 requirement, since the courts who apply the law on behalf of the State are only required to take account of the rulings. Ministers and Parliament (representing the State) on the other hand are held to a much less rigorous standard of compliance under the Act. Ss 6(3) and (6) exempt Parliament from acts which are incompatible with the Convention, whilst s 10 says only that Ministers may make remedial orders if they see fit. As for new legislation and statements of compatibility, these only need to state that the Bill conforms to the Convention rights, not to any rulings of the Court.
    In that regard I see the Tory proposal that there would be a “new Parliamentary procedure to formally consider the judgement” in any case of an adverse ruling against the UK as something of a step forward, rather than back as critics suggest.

  5. Some months ago I found a list of judgements against various countries by the ECHR, in which the UK comes out reasonably well overall, and often better than other countries, especially when population size is taken into account). The table is here: http://www.echr.coe.int/Documents/Stats_violation_1959_2013_ENG.pdf

    As usual, public opinion against the ECHR is swayed by a small number of cases that for many of us seem to go against good common sense, for example, by what appears to be putting some minor ‘right’ of a clearly undesirable criminal against the safety, security and wishes of the population of this country (apparently).

    Given the number of miscarriages of justice, bent coppers, etc etc perhaps one should be cautious about being too ready to believe the Daily Mail.

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