The Tories’ plans for our fundamental liberties are dangerously nonsensical

Just as Michael Gove wrought havoc on the country’s education system before he was ushered out of public view by David Cameron, the same fate now awaits the British constitution. The Tories’ manifesto commitment to “scrap the Human Rights Act and introduce a British Bill of Rights” was at best non-sensical; with the appointment of Gove as Justice Secretary, it became dangerously nonsensical.

The Human Rights Act 1998 (HRA) is how the European Convention on Human Rights is incorporated into British law. The Convention was drafted in the aftermath of the Second World War, mostly by British lawyers, including the former Tory attorney general Sir David Maxwell-Fyfe. The aim of the Allies was to prevent the horrific human rights abuses which had taken place during the Second World War, particularly the Holocaust, from ever happening again. As such, the Convention contains some of our most fundamental and basic liberties: the right not to be tortured, freedom from slavery, freedom of religion, the right to a fair trial. Britain was the first nation to ratify the Convention in 1953, and from that point Convention rights became British rights.

The HRA meant that from 2000, when the Act came into force, British people did not have to go to Strasbourg to have cases concerning their Convention liberties heard, but rather could just use British courts instead. When the HRA was piloted through Parliament by Tony Blair’s government in 1998, it received widespread cross-party support.

However, fast-forward 17 years and we now have a Tory government with a slim majority who are committed to dismantling this crucial element of our constitutional framework. If the manifesto pledge is taken at face value, this would mean both repeal of the HRA and the creation of a British bill of rights. Both moves would be entirely non-sensical and deeply damaging to our international standing.

First, on repeal of the HRA: the HRA just means that British people can have their liberties enforced in British courts, rather than having to go to Strasbourg, just as used to happen before the HRA came into force in 2000. If the Tories repeal the HRA, Britain would remain a signatory to the Convention, British laws would still have to comply with the Convention and Britains will still be protected by Convention liberties, they’ll just be more costly and time-consuming to enforce.

Nor would repeal mean that British courts would be any more or less bound to follow Strasbourg rulings. Actually our courts already don’t follow Strasbourg decisions when they don’t want to; they are only bound to “take account” of them.

So what would be the point of repeal? None. But Cameron’s desire to be seen to ‘take action’ on a manufactured problem may well create a constitutional crisis. In recent days, both the Irish and the Scottish governments have made clear their fierce opposition to the HRA’s repeal, with the former pointing out that repeal would threaten the Good Friday Agreement and the fragile peace settlement in Northern Ireland. Nothing to gain it seems, but an awful lot to lose.

But if repeal of the HRA is indeed without benefit, perhaps then the Tories’ intention – despite there being no mention of it in the manifesto – is to scrap the HRA and also to withdraw completely from the Convention? To do so would be an extraordinary statement. It would put us alongside Belarus and Kazahkstan, the only two European countries who have not signed up to the Convention. What genuinely appalling and embarrassing company that would be. The effect on our international reputation from such a move would be considerable and far-reaching. Our urging of, for example, the Chinese or the Russians, to better abide by shared standards of fundamental human freedoms would be worth much less. It is very clearly in Britain’s national interest to uphold and further international order; quite why we would seek to so deliberately undermine international law is impossible to understand.

Withdrawal from the Convention would also likely mean that Britain would be ejected from the founding bodies of the European Union, including the Council of Europe. The consequences of withdrawl are therefore so far-reaching that it has to be assumed this isn’t the Tories’ plan. This said, given the reckless ideological zeal with which Michael Gove approached his prior education brief, it would be prudent not to bet against it.

Now the second element of the promise: a British bill of rights. Well, if Britain remains signed up to the Convention, then any rights would have to comply with Convention rights. So how would a British bill of rights provide anything different to the Convention? Surely the plan can’t be for the British bill of rights to just add to the Convention rights? I thought too many rights was the supposed problem here. Perhaps Cameron and Gove intend to copy and paste the Convention, but simply put “British” at the top, rather than “European”, in effort to somehow render the document more acceptable.

In any case, Incidentally, the Coalition government set up the British Bill of Rights Commission in 2012, but it was disbanded after failing to reach any consensus on what British rights ought to be. Finally, why would we call the rights “British” if parts of Britain (like the Scots) retain the HRA and do not adopt the Tories’ new bill of rights?

As the above brief (and by no means complete) summary implies, Cameron’s implementation of his manifesto promise to repeal the Human Rights Act is fraught with not just considerable problems but also with real danger to our international reputation, our most fundamental freedoms and to our precious constitution. It is incumbent on all who value these things to join forces to give these deeply reckless proposals the defeat they’re due.