There are strong arguments for keeping the Human Rights Act – it’s time we started making them
Speaking on the same day that the government confirmed its intention to press ahead with scrapping the Human Rights Act 1998, former Conservative attorney-general Dominic Grieve QC MP said the party’s own pre-election research showed there was little public appetite for such a move.
‘Private polling by [Conservative election campaign strategist] Lynton Crosby into public attitudes found that the number of people really concerned about the Human Rights Act is minuscule,’ said Grieve. That was why, he added, the pledge to scrap it had been relegated to ‘page 93’ of the Conservative manifesto at the last election.
Grieve’s removal as attorney-general in 2014 was widely seen as a response to his support for the HRA in the face of Conservative determination to replace it with a British bill of rights.
In a robust defence of the act, he argued that a ‘sub-text of rights runs through English history since the middle ages’, but he warned that ‘we might end up with an English bill of rights’, due to the complications any repeal would cause the devolution settlements with Scotland, Wales and Northern Ireland.
Grieve insisted that, under any ‘cost-benefit analysis’, the case for keeping the act is ‘overwhelming’. The damage that would be done to Britain’s reputation abroad and the political difficulty it would cause at home if it were abolished mean it will ultimately survive, he said. ‘Be of good cheer,’ he told a conference into ‘new perspectives’ on the act, organised by think tank Counterpoint.
However, later the same day, Dominic Raab MP, minister for human rights, insisted the government was pressing ahead with its plans. A consultation paper would be published ‘in the autumn’, he said. Raab explained that the government wanted to ‘see greater authority for the Supreme Court’ and a greater respect for the legislative role of MPs.
Raab appeared to be pandering to the belief among many backbench Tories that the European Court of Human Rights regularly overrules the Supreme Court and parliamentary legislation. The evidence tells a different story. As Grieve pointed out, only around 1 per cent of all applications against the UK get as far as a hearing and, of these, it has been found to be in violation of the convention only a handful of times, the most notorious of these being the European court’s ruling over prisoners’ voting rights. Grieve said that while there are arguments in favour of prisoners’ voting, the court overreached itself on this occasion. The issue should have been ‘well within the margin of appreciation’ and left for the UK to decide for itself. He pointed out that the previous Labour government was equally to blame for the fact that the controversy had dragged on by failing to respond to the court’s judgment.
He also added that the prisoners’ case demonstrates the limits of the powers of the court and the convention. The court does not have the power to overrule parliament and prisoners still don’t have the vote in this country. It can only declare legislation as being incompatible with the convention and refer it back to a member state to reconsider.
Grieve is an informed and articulate defender of the HRA. However, his confidence that the act is safe rests largely on the assumption that unpicking it will be too complex a process for the Tories to want to undertake. After nearly 20 years of its existence, it is time those of us who, like Grieve, believe the act is a vital piece of legislation make the positive case for its retention.