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Guest post: The Conservative Party manifesto and human rights

The Conservative Party manifesto states that the terms of British EU membership will be renegotiated and an in/out referendum held. The Human Rights Act will be ‘scrapped’ and replaced by a British Bill of Rights. As for legal aid, the document merely informs us that they would continue to review our legal aid systems, so they can continue to promote access to justice in an efficient way.

The statement about legal aid continuing to promote access to justice is questionable since legal aid has been removed from many areas of civil law, considerably curtailed in Magistrates’ Courts and means tested in the Crown Court so that many will end up paying a contribution to their legal fees. Just what the manifesto means by review is debatable but it seems unlikely that they would be proposing any reinstatement of legal aid into areas where it was withdrawn under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Human Rights – a few thoughts:

The United Kingdom – as a nation – is a member of the Council of Europe and it is under that body that the European Convention on Human Rights operates. For purely political reasons, I cannot see the UK withdrawing from the Council and the manifesto makes no such suggestion. Thus, the UK would – as a nation – continue to be bound in international law by its obligations under the Convention.

Nevertheless, the Human Rights Act 1998 would be ‘scrapped’ and replaced by a British Bill of Rights. The British Bill would remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights. What they see as ‘mission creep’ would be removed. In other words, they seek to stop ‘human rights law being used for more and more purposes, and often with little regard for the rights of wider society.’ Here is an attack on the so-called ‘living instrument’ doctrine developed by the European Court of Human Rights and which sees the convention as capable of adaptation to the needs of contemporary democratic societies as opposed to the needs and attitudes of the 1950s. The living instrument approach has enabled the law to be carefully developed in sensible ways – eg the concept of ‘family’.

The contents of a British Bill of Rights are not set out though perhaps some indication may still be found in the report of the Bill of Rights Commission. However, the extent to which they would adopt the Commission report and recommendations is far from clear. Whilst accepting that a manifesto is a blueprint for government, it would be helpful to the voter to know rather more about just what is proposed and a draft Bill of Rights promised for the autumn of 2014 did not appear.

The word ‘original’ is also interesting. They cannot truly mean a return to the convention as it was in the 1950s and ignore the various subsequent protocols. Again, the document lacks precision.

One point is made a little clearer in that the manifesto indicates that the repeal of the Human Rights Act and the British Bill of Rights will ‘break the link between British Courts and the European Court of Human Rights’ and ‘make our own Supreme Court the ultimate arbiter of human rights matters in the UK.’

The link referred to is presumably the point that the Human Rights Act requires our domestic courts to ‘take into account’ decisions of the European Court of Human Rights. That is quite a step away from actually telling courts that they MUST follow Strasbourg decisions though, essentially as a matter of common sense, the judges tend to do so unless there is some good reason not to do so.

Of course, the Supreme Court of the UK – mighty as it is – cannot be the ‘ultimate arbiter’ of human rights in the UK – (see Making the Supreme Court Supreme). That role would have to remain with Parliament and the UK would, as already stated, continue to be bound in international law by those decisions of the European Court of Human Rights to which the UK was a party.

Whether the British Bill of Rights proposal would appeal to those in parts of the UK with devolved government (eg Scotland, Northern Ireland) is a further debatable point. It would be ludicrous to end up with markedly different systems of rights protection depending where you were in the UK.

Much food for thought here… especially for the thinking voter!! I remain seriously sceptical about their proposals because I see this as part of an agenda to limit rights and access to justice.

Please also see Public Law for Everyone – Human Rights in the Conservative’s manifesto – Four comments

Human Rights -a look at the Conservative Party proposals – (ie as they appeared in October 2014)

The law blogger ObiterJ writes at Law and Lawyers.