Breaking with convention

So the government won’t be scrapping the Human Rights Act in the first session of parliament after all. All we had in the Queen’s Speech last week was a rather cautious promise to ‘bring forward proposals for a British Bill of Rights’. And those proposals will not be brought forward during the government’s ‘first hundred days’, as some reporters had persuaded themselves.

But that doesn’t mean they have gone away. I’m told that Michael Gove, the justice secretary, will consult for as long as he can to find out where the objections lie and to allay people’s fears. What form the consultation will take has not been decided, but the government intends its reform bill to receive detailed consideration on the floor of the Commons rather than in committee.

The idea that Gove had inherited a fully-fledged bill from his predecessor Chris Grayling is one to which I never attached any credence. The 40-page document drafted for the Conservatives by Martin Howe QC was always seen by ministers as a starting point, not a blueprint. And withdrawing from the European Convention on Human Rights — a threat made by the Conservatives in their policy paper last October — is firmly off the agenda.

As Gove is well aware, that would have been the only way of ensuring that the human rights court in Strasbourg could never find the UK in breach of the convention. How, then, will the government achieve its manifesto promise to ‘reverse the mission creep that has meant human rights law being used for more and more purposes and often with little regard for the rights of wider society’?

First, there is diplomacy. As I noted here two weeks ago, the Strasbourg court seems increasingly reluctant to rule against the UK on anything that can be brought within a state’s ‘margin of appreciation’. The government has noticed.

Second, there is the judiciary. Paul Mahoney, the British judge at Strasbourg, must retire by September 2016. Next April, members of the Council of Europe’s parliamentary assembly will elect his replacement from three candidates selected by the Ministry of Justice. Those out of sympathy with the government’s objectives need not apply.

Third, there is the relationship between Strasbourg and the UK courts. Section 2 of the Human Rights Act 1998 says our judges ‘must take into account’ judgments of the Strasbourg court. The government is thinking of changing ‘must’ to ‘may’, allowing UK judges more leeway.

Other clauses now under consideration would follow the example of section 12 of the Human Rights Act – under which courts must have ‘particular regard’ to freedom of expression – and section 13, under which they must have particular regard to freedom of thought, conscience and religion. I have never thought that those sections meant very much, but a similar provision might require the courts to have particular regard to the need for public safety when considering whether terrorists can avoid deportation. And there is talk of enhancing press freedom – presumably at the expense of private and family life.

This sort of tinkering poses a problem for the government. The more that UK judges can diverge from past decisions of the European court, the more likely it is that Strasbourg will find the UK in breach of the convention. But it’s a risk that ministers are willing to take. They hope the European judges will be persuaded to follow well-reasoned decisions by the UK Supreme Court, even if those rulings are out of line with Strasbourg jurisprudence.

In the last resort, though, the government seems prepared to face Strasbourg down. Last September, the Council of Europe’s committee of ministers, which supervises enforcement of the court’s rulings, noted ‘with profound concern and disappointment’ that the UK had not introduced legislation to lift the blanket ban on prisoners voting. When officials from the 47 signatories to the human rights convention meet this September, they are likely to be told that the UK government simply cannot get such legislation through parliament. No doubt they will be even more profoundly disappointed – but not as much as they would be if the UK were to withdraw from the convention.

A British Bill of Rights cannot remove the government’s obligation under the human rights convention to ‘abide by’ adverse rulings in UK cases. But it can make an impact on the UK judges themselves. What really concerns the government, I’m told, is its belief that the Human Rights Act has given an impetus to judicial activism in the UK. The message of the British Bill of Rights will be that such activism undermines the supremacy of parliament and is corrosive to the rule of law.

For the judges, then, Gove’s bill will be a shot across the bows. Better than Grayling’s bill, though, which was a shot in the foot.