It seems a long time since human rights were regarded as a noble aspiration. Since then, they have become something of a political football. Where will it be kicked next? On prisoners’ votes, the government’s goal is clearly the long grass. Remember David Cameron promising that ‘prisoners are not getting the vote under this government’? Those were just his ‘personal views’, MPs were told by Chris Grayling last month. The justice secretary put three options to parliament, two of which would indeed give some convicted prisoners the vote.
Opinions differ on whether the government’s draft bill satisfies the European court’s demand for ‘legislative proposals’. I suggested in the Guardian that it does. David Pannick said in The Times that it does not. Lord Pannick QC is usually right. But the two of us agree that it does not make a great deal of difference: the Council of Europe’s committee of ministers, which supervises implementation of the human rights court’s rulings, is unlikely to provoke a crisis while the proposals are still being considered.
A rather more interesting question is when the Strasbourg court will unfreeze the pending compensation claims by convicted prisoners. Again, I would not expect the court to rush in while there is still a chance that the UK will comply with its treaty obligation to ‘abide by’ its rulings. That is most likely to happen, if at all, soon after the next general election. Rather sooner than that – this month or next – we can expect a report from the commission on a Bill of Rights, set up by the coalition government nearly two years ago to ‘investigate the creation of a UK bill of rights that incorporates and builds on all our obligations under the European convention’.
All eight of its members are QCs. Four are Conservatives. They are unlikely to be comfortable with the commission’s starting point: a convention that is seen as a ‘living instrument’ by a court that enforces it against the wishes of the UK. The other four commissioners were chosen by the Liberal Democrat leader, Nick Clegg. Far from wishing to cut back ‘all our obligations’ under the convention, they would be expected to seek more.
So we can expect an elegantly drafted compromise, offering the government a menu of options. But the one that does not seem open to it is the option Grayling seemed to favour in evidence to the House of Lords constitution committee last month. ‘Ministers have a duty to implement decisions reached by the European Court of Human Rights unless and until this country, as a sovereign nation, forms a view that it does not wish to be part of those arrangements in their current form,’ he told peers. The human rights convention, a ‘laudable document’ when it was written, had become very different after 50 or 60 years of judicial interpretation.
‘That has led to a political debate in this country about whether we are willing to accept and to be part of an international arrangement that has evolved so much over that period of time,’ Grayling continued. ‘I have a right as a legislator to say, "I am not happy with the direction of travel; I do not believe that is what society intends" and to exercise the sovereignty of parliament to say, "We want to do something different".’ He did not say what that might be.
But one possibility was floated a few days later by Nick Herbert MP, a justice minister until he left the government earlier this year. Delivering the Kingsland Memorial Lecture for the thinktank Policy Exchange, Herbert called on the UK to withdraw from the jurisdiction of the human rights court.
That is possible under the European convention: any party may ‘denounce’ it on six months’ notice, though the state must continue to respect the convention in the meantime. Under Herbert’s plan, the Human Rights Act would be repealed although the convention would continue to be enforced by the UK’s judges through a UK bill of rights.
That is a perfectly honourable way of ‘bringing rights home’, as he put it. But where I think Herbert is simply wrong is in asserting that ‘fully repatriating the convention rights and withdrawing from the jurisdiction of the Strasbourg court would not require us to withdraw from the Council of Europe’. No country can join the 47-member international body unless it agrees to be bound by the human rights convention. That requirement would become pointless if a country could pull out of the convention just six months later.
If the Conservatives are going to claim in their next election manifesto that denouncing the convention would not affect the UK’s membership of the Council of Europe – and, in turn, the EU – they will need to demonstrate first that both institutions share that view.