Short Cuts

Francis FitzGibbon

Things aren’t going well for Chris Grayling, the secretary of state for justice. His ‘Spartan’ prisons policy and sacking of hundreds of warders coincided with a rise in violent disorder and suicides in jails. In September a High Court judge described his actions on legal aid as so unfair as to be illegal (he was found to have suppressed expert reports that showed his plans were unviable). He may have thought that the removal of Kenneth Clarke, Dominic Grieve and (perhaps) William Hague from the cabinet left the field clear for his long promised assault on human rights law. Instead, he lost any respectable cover for the Conservative Party’s sinister and absurdly ill-conceived proposals, which were published alongside his personal announcement of them the day after his party conference packed up and took his internal critics away with it.

Grayling intends to repeal the 1998 Human Rights Act (HRA) and replace it with a British Bill of Rights. Grieve and Clarke could have warned him that such a bill won’t be ‘British’ at all, because it’s up to the Scottish Parliament to decide whether to repeal the act in Scotland, and the SNP says it won’t. Similar considerations apply in Northern Ireland. So it would really be an English and (under coercion) Welsh Bill of Rights.

Grayling tendentiously describes the HRA as Labour’s Human Rights Act. In fact, the Tories didn’t vote against it, and many of them supported it. When Parliament was debating the incorporation of the European Convention of Human Rights into domestic law in 1997, the Tory shadow lord chancellor, Lord Kingsland, congratulated ‘the lord chancellor on furnishing us in his bill with so many ingenious solutions to what seemed to be a range of intractable problems. I join him in congratulating the parliamentary draftsmen; it is a masterly exhibition of their art. Her Majesty’s loyal Opposition will not be voting against the bill.’

Kingsland was chiefly worried about judges becoming politicised, but they had faced that challenge with varying success for centuries before the HRA and have proved their independence since. What united politicians in 1997 was the obvious desirability of giving our citizens remedies in our courts for breaches of the convention, to which we have subscribed since 1950, and which was largely written by British lawyers. Before the HRA, claimants had to go to the European Court of Human Rights in Strasbourg: the process was long and complicated, and took important decisions out of the hands of British courts. The HRA increased their sovereignty by enabling them to apply the convention and its case law directly in their decisions.

Kingsland saw that the HRA is subtle: it does not give judges the power to strike down statutes that conflict with convention rights and it doesn’t force Parliament to amend them. With decent legal advice, Grayling should have understood that the HRA does not make decisions by the Strasbourg court binding on British judges: they must merely ‘take account’ of them and must interpret national legislation compatibly with convention rights, so far as is possible. The higher courts may, if necessary, declare that a provision is ‘incompatible’ with national legislation. The law in question would remain in force until Parliament decided whether to amend it. It doesn’t have to. Parliament remains sovereign: its obligation to ensure compliance with the convention is no different from its responsibility to comply with other international instruments such as the UN Convention against Torture or the Convention on the Rights of the Child. The HRA is special because it creates a unique mechanism for the courts to bring compatibility problems to Parliament’s attention.

The subtlety is lost on Grayling. He would have Parliament decide whether or not to abide by decisions his government did not like. It’s as if we said to Fifa: ‘We’ll play in the World Cup, but we’ll only obey referees’ decisions if we agree with them.’ On one level it’s crass, but on another it’s dangerous: a challenge to the Council of Europe to throw the UK out, if it dares. The council has responded tersely: ‘As they stand, the proposals are not consistent’ with the convention. Now that the EU is a member of the Council of Europe in its own right, and has transposed convention rights into its own Charter of Fundamental Rights, the attack on Strasbourg incites another confrontation with the real enemy, the EU itself.

Grayling complains that our courts treat the convention and its case law as ‘sacrosanct’. We chose to be bound by the convention because we agreed that its principles give at least the minimum standard of rights that any decent country would demand for its inhabitants. The relationship with the Court of Human Rights is much more nuanced than he realises, as he would have discovered if he understood how our courts treat its rulings in practice. The methodology of our appellate decisions has been influential and the UK has won most of the cases it has fought there. The domestic courts have engaged in a dialogue with Strasbourg, not always harmonious, but constructive in reaching compromise on contentious issues such as prisoners’ votes and the extent to which hearsay evidence can be used in criminal trials.

His proposals aren’t free from elementary errors of fact (Grieve described them as ‘howlers’), such as the claim that Strasbourg has banned whole-life sentences for the gravest crimes: it has done no such thing. In a case called Vinter the court held that a whole-life term without the possibility of review breached Articles 3 and 5 of the convention (inhuman or degrading punishment, and liberty and security of the person). In a subsequent case on the same point, the lord chief justice held that, as things stand, there is adequate provision for review of whole-life terms. The matter was settled. The convention was designed to give states a ‘margin of appreciation’: leeway in the manner they apply it, according to their own traditions, provided they comply in substance. The HRA did nothing to encroach on that.

The convention guarantees rights: some absolute, like the right not to be tortured; some qualified, such as the right to family life. It also guarantees ‘fundamental freedoms’, including free expression and freedom of religion. Grayling has picked up something from the American originalists, who believe that the meaning of the US constitution was settled for all time when it was first issued, and shouldn’t be reinterpreted in the light of later developments in law and society. He dislikes the idea that the convention is a living instrument; certainly, its founders couldn’t have envisaged the unregulated use by law enforcement of DNA evidence, or mass surveillance – but that’s the point. A living instrument can protect against new threats to individual freedoms on the part of the state. A dead letter can’t.

In his proposed British Bill of Rights Grayling wants to curtail some of the convention rights, ostensibly in order to recapture its founding principles; in reality, to draw power back to the state and to curtail our rights and freedoms. This is where his cavalier indifference to facts turns frightening. He will introduce a ‘triviality test stopping human rights laws being used for minor matters’: meaning that the government will decide a priori whether your claim engages your human rights. He ‘will limit the reach of human rights claims to the UK, preventing cases being brought against our armed forces overseas, that just stop them doing their job and keeping us safe’. The battlefield would become a human-rights-free zone. Human rights, he goes on, will be available to ‘responsible members of society’ – responsible according to whom?

He would ‘crucially’ restrict Article 8, the (qualified) right to family and private life: he says that travellers, foreign criminals and prisoners wanting artificial insemination would be denied it. So would illegal entrants to the country and their partners and children. He wants a whipped parliamentary majority to decide who should have the benefit of human rights. This à la carte approach comes unstuck immediately, however, because Article 1 provides that signatories ‘shall secure to everyone within their jurisdiction the rights and freedoms … of this convention’. We have human rights by virtue of being human, not because we belong to a section of society that the government doesn’t yet despise. Grayling also overlooks the fact that Article 8 rights (and others) are already qualified by the ‘interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. The right to family life is already subject to larger considerations.

Another bugbear has been the difficulty that governments (of both parties) have had in expelling terror suspects and other undesirables. Since Strasbourg decided Chahal v. UK in 1996, we haven’t removed people to countries where they face a real risk of torture or inhuman or degrading treatment, because to do so would breach their Article 3 rights. That undoubtedly causes problems in the case of people like Abu Qatada who are seen as a threat to the UK’s security. The ‘real risk’ test found favour because it matched the test used in asylum cases, and because it is appropriate when trying to gauge a future risk. It makes sense to decide competing claims about past events by deciding which account is more probable; a future event is far less susceptible to that test, especially when a person’s life or personal safety may be at stake. Grayling’s answer is to replace the ‘real risk’ test with a tougher standard, and to redefine what constitutes ‘degrading or inhuman treatment’. He is happy to increase the chances of consigning people to a terrible fate in countries whose goon squads have no regard at all for human rights.

The train wreck all this would cause is plain to see. The UK and Belarus could end up as the only European states outside the Council of Europe. Until the Council of Europe expels us, citizens will once again have to apply to Strasbourg for redress, as they did before the HRA. There will be inconsistent standards in different parts of the UK. This would be particularly acute in immigration and asylum law, which is applied by a tribunal that has the same jurisdiction in England and Scotland. The body of English human rights case law that has grown up since 1998 won’t just go away: human rights principles are embedded in our law and can’t be uprooted overnight. Courts will still use them.

The politics are as crude as the legal and constitutional moves: the harping on about the foreignness of Strasbourg, and about prisoners, foreign prisoners, foreign undesirables and travellers is meant to woo the disaffected UKIP-leaning right. But we can gauge the depth of Grayling’s failure, in his own narrow political terms, by Nigel Farage’s response: ‘This is red meat for the troops before an election,’ he said, ‘but will turn out to be thin gruel if they ever try to enact it.’ Grayling’s contempt for the way the law actually works, and what it means for all of us, would be barely tolerable from a golf club bore; coming from the secretary of state for justice, it is unforgivable.