Patrick Smyth: UK is on wrong path with human rights changes

‘Would Westminster legislate to allow the writ of the ECHR continue to prevail in Northern Ireland and Scotland while not in the rest of the UK, creating two legal rights regimes within the UK?’

‘Then there’s our own Belfast Agreement, into which the Human Rights Act is woven. The latter’s repudiation would breach international treaty obligations, specifically in relation to the British-Irish Agreement that underpins the agreement.’ Photograph: Getty Images

‘Then there’s our own Belfast Agreement, into which the Human Rights Act is woven. The latter’s repudiation would breach international treaty obligations, specifically in relation to the British-Irish Agreement that underpins the agreement.’ Photograph: Getty Images

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It is a surprising, albeit deliberate, common feature of the Tories’ plans for UK disengagement from both the EU and the European Court of Human Rights (ECHR) that they lack any detail beyond general statements of intent.

As a Guardian writer observed, “the Conservatives’ published plans amount to little more than scribblings on the back of a fag packet”. An eight-page policy paper from last October barely scratched the surface of the legal complexities.

Beyond saying that the party will replace the Human Rights Act, which incorporates the Strasbourg court into UK law, with a Bill of Rights, and that the mandatory rulings of the court would end up being purely “advisory”, we know little more except that giving the axeman job to intellectual bootboy Michael Gove shows a seriousness of purpose.

One specific pledge about the Bill of Rights is that it will “stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation”. But what is a “spurious human rights argument”?

In the case that enraged the UK most, London-based jihadi Abu Qatada resisted deportation on the treaty-based grounds that he would face torture in Jordan. Is that a “spurious” argument?

Take into account

The Human Rights Act is said to undermine the role of UK courts and sovereignty in requiring that national judges “take into account” ECHR jurisprudence.

The intention, we are told, is that Gove will produce legislation within 12 months. But he is entering a minefield on a fundamentally misguided project, with the prospect of wide collateral damage to much more than the UK legal system. It will undermine the edifice of European human rights standards constructed after the second World War, largely at British instigation.

Those countries with abysmal rights records (Russia, Turkey), who are ECHR signatories but resent the court’s important and binding rulings, will watch with glee as the UK leads the way out.

Then there’s our own Belfast Agreement, into which the Human Rights Act is woven. The latter’s repudiation would breach international treaty obligations, specifically in relation to the British-Irish Agreement that underpins the agreement.

The Human Rights Act has proved particularly important to gay and lesbian communities who face persistent attempts by the Northern Assembly to institute discriminatory legislation such as the Freedom of Conscience Bill), and policy on blood donation and adoption.

Then there’s the Westminster legislation giving power to the Scottish Parliament and the Welsh Assembly, which enshrines Britain’s adherence to the convention. The Human Rights Act’s replacement would require the unlikely approval of the Scottish parliament.

Or would Westminster legislate to allow the writ of the ECHR to continue to prevail in Northern Ireland and Scotland while not in England and Wales, creating two legal rights regimes within the UK?

Court signatory

Then there’s the imminent accession of the EU to the ECHR to become its 48th signatory, a requirement of the Lisbon Treaty.

An academic paper on the consequences of withdrawal from the ECHR* argues that “being a party to the ECHR continues to be an implied obligation throughout EU membership even though it is not expressly laid down in the EU treaties. Hence there are good reasons to suggest that if the UK withdrew from the ECHR, it would equally be in breach of its obligations as a member-state so that a continued membership in the EU might not be possible.”

But then, perhaps that’s “a consummation devoutly to be wished”?

Is there a halfway house between merely repealing the Human Rights Act and repudiating the ECHR that would not entail such dramatic external consequences? Prof Fiona de Londras of the University of Durham, a contributor to the paper, accepts that Gove may try and replace the Human Rights Act with a Bill of Rights without repudiating the convention.

That would leave UK citizens still able to sue in Strasbourg to uphold their convention rights, although not through the UK courts unless the bill replicates those rights. But “any suggestion that decisions of the ECHR that are directly applicable to the UK would only be advisory . . . would require an amendment of the Convention, and it is highly unlikely that the UK would achieve consensus among the states to do that”. Withdrawal would then become inevitable.

This is not the road to go down.

psmyth@irishtimes.com * The legal implications of a repeal of the Human Rights Act 1998 and withdrawal from the ECHR, edited by Kanstantsin Dzehtsiarou and Tobias Lock

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