One of the Conservative’s populist manifesto pledges in 2015 was the replacement of the Human Rights Act with a British Bill of Rights and “break the formal link between British Courts and the European Court of Human Rights”. The Government now concedes that publication of the Bill will have to be delayed until after Brexit. Senior Conservatives have used the opportunity to urge May to go further and commit to pulling out of the European Convention on Human Rights (ECHR) in the 2020 manifesto. Other senior Conservative figures such as former Attorney General, Dominic Grieve and former Justice Minister, Ken Clarke have opposed the move. While May reserves judgement, we know that she personally supports the tougher proposal of not just repealing and replacing the Human Rights Act with a Bill of Rights, but leaving the ECHR. In that regard, her last substantive statement on the matter is worth a closer look.
On April 25, Theresa May set out her position on Brexit, while wholly backing David Cameron and the Remain camp on the European Union (EU), she aimed her crosshairs on the ECHR and the jurisdiction of its Strasbourg Court; emphatically proposing Britain shake off this burdensome and overbearing influence. This despite David Cameron ruling out withdrawal from the ECHR the previous year.
The clear principles on which membership of international institutions should be decided, according to the then Home Secretary, are the favourable effect on Britain’s overseas influence, security, prosperity and the extent to which Parliament’s hands are bound. In the case of the ECHR as opposed the EU, UN, NATO and WTO, the answer seems was for May a resounding no. However the reasoning that followed was surprisingly flawed and narrow. If her views remain the same, there is a risk of appeasing post-Brexit base instincts of fear and anxiety in sections of the electorate at the expense of rule of law and human rights.
According to May:
“Despite what people sometimes think, it wasn’t the European Union that delayed for years the extradition of Abu Hamza, almost stopped the deportation of Abu Qatada, and tried to tell Parliament that – however we voted – we could not deprive prisoners of the vote. It was the European Convention on Human Rights.”
Extraditions can only be prevented under the ECHR, when there is a real and serious risk of torture. It has nothing to do with the presumed guilt or character of the accused and is based on the inviolable international human rights norm that torture is impermissible under any circumstances. This is a consensually accepted norm under the UN that May wants to remain a member of, nor would she be at ease to assert that deportation to a regime, where torture was likely and routine is something the UK would condone or disregard. Ultimately the UK was only able to persuade Abu Qatada to return to Jordan after securing bilateral guarantees that evidence obtained through torture would not be used against him. Furthermore no charges were bought against him in the UK and as such the case for his threat to national security was not publically aired. The length of delay for both was arguably due to the sheer volume of the Court’s case load. Alternatively according to Ken Clarke “the failure to deport foreign criminals and terror suspects such as Qatada more quickly has been due to Home Office incompetence, rather than any flaw in human rights laws.”
In the case of Hirst v. UK, the Court did not find that the UK must permit all prisoners the right to vote. Rather it found the ban too blanket and simply asked the UK to take into account the type of crime and potentially permit some prisoners to vote. Surely it is a common sense position that most would agree with, if it was transparently and objectively explained. Is it fair that a petty crime should attract the same heavy sanction of deprivation of the democratic right to vote as someone guilty of a serious crime? It is strange with all the talk of Parliament’s hands being bound, the ruling in Hirst has still to be been implemented, despite the Council of Europe passing resolutions calling on the UK to comply. This demonstrates vividly that when the Government wishes to drag its feet, neither the Council nor the Court can compel it.
“I can already hear certain people saying this means I’m against human rights. But human rights were not invented in 1950, when the Convention was drafted, or in 1998, when it was incorporated into our law through the Human Rights Act. This is Great Britain – the country of Magna Carta, Parliamentary democracy and the fairest courts in the world.”
She conveniently omitted that Churchill spear-headed a European ‘Charter of Human Rights’ in 1948 as a response to the horrors of the Nazi regime and that British lawyers led the way in its drafting. Herein lies the crux of why post-1945 regional and international legal instruments and institutions are so important. In the face of unspeakable suffering and loss of life, there was a realisation that universal and fundamental human rights left solely to any single nation-State could always deteriorate to the level of Nazi Germany – the recent rise of the far right, neo-nazism and white supremacism in Europe and the US is a stark reminder of this. Collective and supranational oversight of human rights and indeed international peace and security was essential to prevent history repeating itself. That approach has largely proven successful. Western Europe viewed through the Council of Europe and the European Union has been by far the most peaceful and prosperous region in the world. Evidence that the ECHR and its Court from a historical perspective have contributed significantly to European regional and thus British national security.
Even May’s former ally, Michael Gove as Justice Secretary and Lord Chancellor, ruled out derogating from the ECHR, while affirming his commitment to a Bill of Rights. Furthermore May’s stated reasons for an extreme position on leaving the ECHR altogether were superficial and misleading boiling down the rich history and substance of the ECHR and its Court as annoyances that impeded her work as Home Secretary of dealing with essentially ‘criminals’; deporting foreign ones (even if they are only suspected and may face torture) and disenfranchising British ones (even if convicted of minor crimes).