You had to feel sorry for the civil servants at the Ministry of Justice this week. Having already been saddled with implementing a radical right wing agenda that promises the biggest roll-back of civil liberties in quite some time – including a snooper’s charter eroding our rights to privacy and new censorship powers allowing the government to muzzle alleged extremists – the MoJ then lost the ministerial Russian roulette with the news that Michael Gove would be tasked with implementing it.
Gove, whose rocky tenure at the Department for Education burned bridges with the teaching profession and even Tory cabinet colleagues, made his mark with a zealous imposition of a divisive ideological agenda – from free schools to relentless curriculum reform – in the face of evidence of widespread opposition both within the teaching profession and beyond.
As we brace ourselves for the first majority Tory government in 18 years, it’s worth reflecting on what’s at stake as the party prepares to drive through another radical agenda, this time at the MoJ, with a deeply divisive figure leading the charge. A few days ago the government quietly announced that, freed of the restraints imposed by those pesky civil libertarians among their former coalition partners, they will at last push ahead with their long-standing dream of doing away with that perennial bête noire of Tory ministers and their henchmen in the right wing tabloid press – the Human Rights Act.
In opposition, and during the Coalition government, the Tories never missed an opportunity to denigrate the Human Rights Act (HRA. But for every isolated case like Abu Hamza’s – which understandably provoked public outrage – there were hundreds of others which fulfilled the very best of the principles the act enshrined into law.
In one recent case the High Court ruled that the Metropolitan Police had violated the human rights of two women whose allegations of rape had not even been investigated due to a culture of disbelief within the force. That ruling set an important precedent that can now be cited in future in order to force police to investigate these serious crimes.
The HRA has also been used to stop local authorities from separating elderly couples when one of them needs to be taken into residential care, to ensure that mental health patients are treated with dignity and respect and to hold social services departments to account when they fail in their duty to safeguard children from abuse.
Crucially, the act also serves as a vital tool supporting those who seek legal redress when governments over-reach, for example by allowing disabled people to challenge the bedroom tax. And here, perhaps, is the root of the Tories’ opposition. Having been elected on a platform of extreme spending cuts – including unidentified cuts of £12 billion to a welfare budget that’s already been stripped to the bone – ministers are no doubt contemplating the prospect of being held legally accountable if and when these cuts end up impacting on the most vulnerable people in our society, as they are almost sure to do.
The HRA is part of a long, proud history that the UK has developed on Human Rights in the 800 years since Magna Carta, but especially in the 70 years since the end of the Second World War under governments of both parties. In fact – surprisingly in light of the antipathy so many Tories seem to feel towards Human Rights legislation today – it was a Conservative government that built much of the legal framework on which the HRA rests.
The European Convention on Human Rights (ECHR) was inspired by Winston Churchill and was largely drafted by David Maxwell Fyfe, a leading Tory politician of his time. In the wake of the horrors inflicted by the Nazi government over the preceding decade, the treaty established individual rights to life and liberty, freedom of speech, assembly, and exercise of religion, rights to privacy and a fair trial and freedom from persecution, enslavement and torture. The convention established the European Court of Human Rights, allowing citizens of member states to seek redress in Strasbourg. The Human Rights Act simply incorporated these long-standing rights into domestic law, allowing people to take their claims to British courts, with Strasbourg as the court of last resort.
The profound British influence on the European Court has persisted over time, as the judgements of our Supreme Court have so often shaped the European Court’s jurisprudence. Furthermore, our Common Law principle that the law can develop as judges interpret it has trumped the continental tradition of dry legislative interpretation. The adoption of the British approach on the continent has led to the recognition of what are, in practice, new rights, such as the right to have a lawyer present after arrest, which was imported wholesale from Britain to the rest of Europe.
While scrapping the HRA would severely curtail people’s ability to seek legal redress in UK courts for violations of their fundamental rights, the Tories’ threat to withdraw the UK from the ECHR are far more frightening. By contrast to the HRA, UK membership of the ECHR has not received the full-throated defence it deserves, perhaps because it feels so distant and unfamiliar.
It’s unfortunate that the UK and Europe don’t have the kind of culture which esteems legal protections enforced by the courts in the same way as, for example, the US does. Our courts’ decisions do not permeate the public consciousness – we have no equivalent of the Brown v Board of Educationruling which outlawed racial segregation, or of Roe v Wade, which enshrined a woman’s right to choose not just into law but into the public imagination as well.
But the fact that the European Court of Human Rights’ rulings do not become household names in the UK doesn’t mean we don’t have the Court and the Convention to thank for some of our most basic rights and freedoms. These include the right to join a trade union (National Union of Belgian Police v Belgium) and to bargain collectively (Demir and Baykara v Turkey); the right of gay men and women to serve openly in the armed forces (Smith and Grady v United Kingdom); the obligation of states to protect their citizens from human trafficking (Rantsev v Cyprus and Russia) and to treat disabled people and those with mental health problems with dignity (Nencheva and Others v Bulgaria); I could go on.
The other list I’ll leave you with is of the countries the UK would join if we did withdraw from the ECHR. It turns out the list is a short one – just Belarus and Kazakhstan. That’s the club we’ll join if Cameron, Grayling and Gove have their way on Human Rights. Anyone who values the freedoms each one of us take for granted every day must fight tooth and nail to stop the Tories in their tracks.