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  Matthew Scott

Published at 12:01AM, March 7 2013

The Lord Chancellor’s and Home Secretary’s call seems more like headline grabbing than a properly considered policy

Most people dislike lawyers but apart, perhaps, from criminal defence lawyers, few inspire quite as much visceral antipathy as “human rights lawyers”. Not only are they paid hefty fees from public money to defend what many consider the indefensible, they also have an irritating tendency to lecture everyone else from what they say is the moral high ground.

So when last weekend both the Lord Chancellor and the Home Secretary called for Britain to repeal the Human Rights Act, the first instinct of many (including many “ordinary” lawyers) has been to cheer them on. Although it is not entirely clear what they are suggesting, it seems to boil down to three things: repealing the 1998 Human Rights Act, passing a British “Bill of Rights,” and withdrawing from the European Convention on Human Rights.

However, the human rights lawyers should not worry too much for the time being. Mr Grayling and Mrs May’s proposals may produce even more work for them, while entangling future governments deeper than ever in the thickets of human rights law. Let us look at each proposal in turn.

1. Repeal of the Human Rights Act 1998

By itself, repeal of the act would not stop lawyers arguing cases on human rights grounds.

If Britain remained within the European Convention, interpretation of the law would revert to that existing before the implementation of the act. If decisions reached under the Human Rights Act were to be unpicked, the scope for legal uncertainty would be enormous, certainly something to make human rights lawyers slaver in anticipation. Foreign terrorists, too, could safely plan for the future in the confident expectation that many years of litigation would delay their deportation.

The repeal of the act would not prevent the courts continuing to take account of the European Convention, even if they could not apply it directly. Before the passing of the act, the convention was regularly cited in court as an “aid to construction”. In other words it was always possible to argue that Parliament was likely to have intended that a particular statute should be consistent with convention rights, and that it should therefore be interpreted in a particular way. Simply repealing the act would not prevent such arguments.

It is also inevitable that once the British courts were no longer empowered to adjudicate on convention rights, more cases would be taken to the European Court of Human Rights. The British Government would still have to implement these decisions. The net effect might well be more rather than less European interference in British affairs. Rather than British judges telling ministers what to do, there would be Russian and Albanian ones. This would hardly seem to accord with the intention of Mr Grayling and Mrs May.

2. A British Bill of Rights

On the face of it this is a simple and reassuring concept: no more foreign intervention in our courts, we will simply decide our own rights. But assuming we remain inside the convention, a “British Bill of Rights”, if it was to make any difference, would have to add to existing convention rights.

Adding yet more “human rights” – even wholesome, locally produced ones – to those already in existence under the European Convention seems rather to miss the point.

A “British Bill of Rights” would either be a pointless gimmick or it would give yet more power to British judges while doing nothing to reduce the power of the European ones.

It is hardly surprising that some of the most enthusiastic supporters of such a bill have been from what might loosely be called the “liberal human rights lobby”.

Geoffery Robertson, QC, for example, one of the best known and enthusiastic human rights lawyers in the UK, has argued that we need to beef up the “dumbed down” human rights law emanating from the convention (Why we need a British Bill of Rights, Standpoint, Jan/Feb 2010).

Robertson has suggested, as an example, that such a bill might place a ban on “cruel and unusual punishment”. That is all very well, but surely the last thing Mr Grayling and Mrs May want is for human rights law to be “beefed up,” even if the beef in question is 100 per cent British.

In fact, few seem to have much idea either what rights would actually be contained in a British Bill of Rights; the recent coalition commission on the idea was predictably inconclusive.

Nor is it clear how it could be entrenched in a constitution that does not allow a parliament to bind its successors. Indeed, since one of the likely aims of such a bill would be to protect the British concept of parliamentary sovereignty, any attempt to entrench the bill in law would be self-contradictory and, even worse, un-British.

3. Withdrawal from the European Convention on Human Rights

There is no legal bar to Britain withdrawing from the convention, but the political problems would be immense, not least because to leave the convention would almost inevitably require the UK to leave the EU as well.

The European Convention is, of course, separate from the EU. But if Britain announced that it was leaving the convention it would be very hard, if not impossible, to remain a member of the EU.

New members of the EU are required to ratify the convention and other member states would be unlikely to acquiesce in a situation in which we ignored the convention, while remaining part of a club that insisted on others adhering to it.

What is more, the EU itself is about to become a signatory of the convention. So unless Britain were prepared to leave — or be driven out of — the EU, leaving the convention would not be a practical possibility. There may be much to be said for leaving the EU but it is not, at present, the avowed policy of either Mr Grayling or Mrs May. That would have to change if they are determined to leave the convention.