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Thursday, 28 May 2015

Human Rights Act - The Blog that Never Was

So there I was all ready to write an epic blog about the Human Rights Act.

I was going to refer you all back to my 2013 blog about the history of the UK’s role in the establishment of the Universal Declaration of Human rights after WW2, and that we would be standing virtually alone in Europe if we opted out of the European Convention on Human Rights –

Then I was going to rant about how the rights at stake were the rights of all of us and not just those who are disliked by the tabloids. I planned to go through the Act and point out that there is not a single word in it that suggests that prisoners are entitled to have a Big Mac brought to their cell.

The most important point that I intended to make was about the jurisdiction of the UK courts. The main impact of the HRA was to make breaches of Human Rights contained in the Convention, actionable in our courts. Prior to the Act only the European court had jurisdiction. It always seemed to me that the Conservative Party’s determination to remove the Act was illogical because the result would be that UK courts would lose the power to adjudicate and this would be handed back to Europe.

The counter argument was that our courts had to follow the judgments of the European Courts. But this is simply wrong. What the Act says is –

‘2 Interpretation of Convention rights.

(1)A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b)opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c)decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d)decision of the Committee of Ministers taken under Article 46 of the Convention,’

So our courts have to ‘take into account’ decisions of the ECHR and Commission. They are not required to follow any such decision. This was a point made by Leveson LJ (he of the inquiry!), earlier this week. He said that the decisions of ECHR were less binding than people thought. He declared that he did not consider himself – ‘crushed by the European Jackboot’.

So that was what I intended to say in my epic blog!!

After all that hard work it was it was a bit frustrating to see that the government’s plans to abolish the HRA have been delayed for at least a year. They could have waited until I had blogged on it so I could grab some glory!

In truth this is a very encouraging development, but there are still battles ahead. Does it mean that Mr Cameron has seen the error of his ways? No. I think it is much more about the precarious effect of a wafer thin majority. Some high profile Tories had pledged to oppose the move. These included former Justice Minister Ken Clarke QC and former Attorney General Dominic Grieve QC. Even if a bill had scraped through the Commons it would have been mauled in the House of Lords. It is encouraging that sensible backbenchers can hold their own party to account.

But this is not the end of the story. I doubt if this story will go away. It remains a manifesto pledge. Cameron’s friends in the media will expect something. The arguments will continue and we must not let our guard slip.

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