Please note that this blog piece was originally published on the PSA Insight Blog, and is available here.
By Ben Worthy
As a newly elected Prime Minister, you wait around for one European problem then two come along at once. While David Cameron is trying to deal with his EU referendum promise, another ‘European’ problem has reared its head in the Queen’s Speech. The Conservatives promised to repeal the Human Rights Act 1998 and replace it with a British Bill of Rights – see this full fact analysis for background. The Conservative manifesto stated that:
The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights
The Conservatives would draw up a new Bill of Rights that ended the controversial link with the European Court of Human Rights in Strasbourg, treating their rulings as advisory and giving power back to the UK’s Supreme Court. But it looks like the commitment has at least been slowed down-to a promise to consult rather than, as was suggested, to have proposals ready in the first 100 days.
What’s caused the re-think?
The Human Rights Act is surrounded by layers of myths and half-truths. The claim is that the Act creates a set of new rights (it doesn’t, it just adds them to UK law), that it allows judges, and particularly judges from the European Court of Human Rights, to challenge and change British law (it doesn’t really, just lets them declare it ‘incompatible’) and undermines Parliament’s power (which is actually preserves)-see this famous speech by Lord Bingham. This guide to the Act concluded ‘the Government also acknowledged that a series of damaging myths about the Act had taken root in the popular imagination’.
However, the Human Rights Act has become a symbol of ‘European’ interference in ‘our’ politics and abuse of laws designed to protect us. So David Cameron is trying to change something because of what people think it is doing rather than what it is.
So why has Cameron slowed down?
Like any good politician, Cameron has looked across the battlefield and foreseen what could happen. Let’s run a little thought experiment and imagine that he and Michael Gove can draw up a new Bill of British Rights and Responsibilities, one that better reflects British values (putting aside whether it breaks any treaty obligations etc). They can send it, at least in a draft form, to Parliament and repeal the Human Rights Act. At this point, the fun would begin.
In the House of Commons, his own party is deeply divided-and even invoking the classic ‘what would Winston Churchill say’ line hasn’t helped. Some Conservatives oppose any ‘reduction’ in human rights, with one ‘senior’ politician this weekend rumoured to be considering resigning and a group of influential conservative MPs ready to oppose anything they see as a ‘weakening’ of rights.
On the other side, his Eurosceptic [or Euroexit] MPs are keen for something very different that ‘breaks’ the ‘formal link’ with the ECHR and reflects UK values. So the new Bill would have to be a masterpiece that balances these two viewpoints – different from the old Act but not giving less protection.
The truce is fragile
Cameron’s party, for the moment, is holding off rebellions but the truce is fragile and one issue they do like rebelling about is Europe. Just to make things more tricky for a Prime Minister with a small majority, opposite his own party the new block of 56 SNP MPs, 8 Lib-Dems and the whole of the Labour party are all firmly against scrapping the Act.
Then we get to the House of Lords. Technically the House of Lords cannot block anything promised in a manifesto-but in this case it isn’t so clear cut. The government can’t rush them to any decisions and the Lords can block legislation for some time and even ‘filibuster’ (talk until legislation is dropped).
More importantly for Cameron, the Conservatives do not have a majority and there’s a big healthy dollop of Labour and angry Lib-Dems (there’s only 8 Lib Dem MPs but 104 highly engaged Lib-Dem Peers). Added to this, it’s full of lawyers and experts who see themselves as protectors of civil liberties. The second chamber has already issued warnings that any repeal or new bill won’t get through.
Cameron’s headache may become a migraine
So, piloting this through the House of Lords and House of Commons is very tricky. It’s at this point that Cameron’s Human Rights headache may become a migraine. The Human Rights Act 1998 is deeply tied up in the devolution settlement to Scotland, Wales and, especially, Northern Ireland, where it is embedded in the peace process.
Legally, as Mark Elliot points out, it seems Westminster can just about push a new Bill of Rights across the UK. But politically it will be extremely difficult and it’s possible that Scotland may refuse to co-operate. The ultimate danger is that, as pointed out here, a British Bill, opposed in Scotland, Wales and Northern Ireland, could become an English Bill.
So what could Cameron do? Playing for time seems a good idea. How about a referendum?
Ben Worthy is Lecturer in Politics at Birkbeck, University of London. He tweets @BenWorthy1.