A quick post on human rights

Today the Conservatives published their long-promised proposals for the replacement of the Human Rights Act with a British Bill of Rights, although their thunder was stolen somewhat by early publication of the announcement yesterday at Jack of Kent.

There has been plenty of speculation about what such a bill might contain, especially since David Cameron sacked Dominic Grieve as Attorney General. The assumption – which is looking increasingly accurate – was that Grieve was a serious impediment to moving the agenda forward simply by virtue of the fact that he understands and supports international law and human rights law, and the rule of law more broadly. So he had to go.

In the right wing press today Chris Grayling’s proposals have been warmly received. The proposals are combative in tone and make all sorts of noises about stopping judges from interfering from outside the UK, curtailing rights, and linking the exercise of rights to fulfilment of responsibilities. The press has been characterising this as ending the human rights “madness” and reasserting the sovereignty of the UK Parliament.

Commentary in the liberal press has been of a rather different flavour, and the more right-leaning press is by no means entirely supportive.

For all Chris Grayling’s posturing and for all the fanfare of a concerned campaign of media spin, it is, however, less clear what difference the proposals would or could make in practice. It may be, as Jonathan Freedland has argued, that achieving real difference in the law isn’t the primary objective. Some of the proposals would appear to be highly controversial  – such as changes that would effectively seek to exempt UK governments from the provisions of International Law. We might anticipate that the most authoritarian dictators around the globe will be admiring the audacity of this move. The increment to the arbitrary use of state power could be substantial.

Some of the proposals are shot through with problematic distinctions (for example, the distinction between “serious” and “trivial” cases – with human rights law supposedly only applying in the former). The way the proposal’s will interact with the devolved administrations is by no means clear, but given that human rights law in Scotland has a statutory basis separate from the 1998 Human Rights Act it is unlikely these proposals would lead to a new British Bill of Rights.

It would appear that for other proposals the bark may well be worse than the bite.

We have not, however, seen the draft bill that is supposed to embody these proposals. That is a pleasure that still awaits.

Over at ConservativeHome you can find the architects of these proposals, and their supporters, giving the proposals a hefty shove:

However, you can also already find plenty of critical commentary from lawyers with a deep understanding of the relevant areas of law. These include:

The idea that Grayling’s proposals can even achieve his own objectives is treated with considerable scepticism for a wide range of reasons, not least because the sort of cases that get the tabloid press very excited – for example, votes for prisoners; deportation of Abu Qatada – won’t really be affected by them.

We have also had timely reminders that Grayling’s preferred construction – reforming “Labour’s Human Rights Act” – is exposed for the spin that it is when it is noted that it could just as easily be referred to as the Act that embeds Winston Churchill’s view of human rights in UK law. Given the vitriol directed at the notion of human rights by contemporary Conservatives it is hard to believe that the whole structure of human rights law was in large part driven by a more enlightened generation of British Conservatives after the Second World War. It is worth returning Jesse Norman and Peter Oborne’s short book from 2009 to rediscover the point.

More generally this would appear to be a good time to revisit Lord Bingham’s strictures on the importance of fundamental rights and the rule of law.

One of the most extraordinary developments in this evolving story is how quickly Dominic Grieve has moved from a relatively low profile senior member of Cameron’s cabinet to one of its most high profile critics on this point – describing today’s proposals as “puerile”. His stand in support of human rights and the rule of law has led Stephen Tall to designate him Centreforum’s liberal hero of the week. Whether Grieve would be pleased with this accolade is a different matter. But you’ve got to admire someone who is willing to stand so strongly for principles in which he believes, at substantial cost to his career.

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