The Justice Secretary's assault on the Human Rights Act is legally illiterate and betrays a breathtaking ignorance of our history.
Yesterday’s speeches by Chris Grayling and Theresa May at the Conservative Party conference were like a game of right-wing reactionary bingo. All of the choice issues ticked off, one by one. And making it a full house was the old chestnut of human rights.
Chris Grayling's speech built on his Spectator interview from last week, which rehashes some lazy rhetoric on human rights. No doubt it will go down well with those in his party flirting with UKIP, and looks good in his battle with Theresa May over who can be the most anti-human rights. But it’s also legally illiterate, and betrays a breathtaking ignorance of our history and our position in the world.
As a result, I have six questions I’d like to pose to Chris Grayling:
1. Are you content to dilute individual citizens’ rights by removing their ability to petition an international court when domestic courts get things wrong?
You claim our Supreme Court should be ‘supreme’ and not Strasbourg. But would you accept that there have been very important cases over the years when our courts have not protected our citizens' rights and it has been left to Strasbourg to step up to the plate?
While I regularly praise the quality of our legal system, having the option of an international court of last resort has proven crucial to the British people on a number of occasions. Our own courts did not find British Airways’ policy of banning employees from wearing crucifixes to be illegal. Nor did our courts protect the Financial Times journalists who were forced to reveal their sources. It was left to Strasbourg to protect religious freedoms and freedom of speech.
And on anti-terror legislation, David Anderson QC, the government’s own independent adviser on terrorism legislation, recently praised the Strasbourg Court as having moderated the “more objectionable” aspects of UK anti-terror laws without decreasing the public’s safety in any way. It was Strasbourg that found Sections 44-45 of the Terrorism Act 2000 violated Article 8 (respect for private life) after our own domestic courts found no contravention.
2. Do you think those who wrote the original Convention thought time would stand still?
You regularly state that the authors of the convention would be horrified to see how it is now being used. But by claiming that, are you really saying that the court should not have ruled in cases like phone hacking, equal rights for gay and lesbian people and rights for sufferers of HIV? None of these could have been envisaged back in the 1950s, but are judgements that have nevertheless raised the standards of human rights across the continent.
3. Do you think William Hague is wrong to use the promotion of human rights as a tool of our foreign policy?
The Foreign Office is actively using human rights as a tool of our foreign policy. Look at the FCO website – it's full of promoting human rights. Hague is on record saying “there will be no downgrading of human rights under this government”, so why do you appear to disagree?
Is it your view that human rights in other countries are not important? Our influence around the globe is enormous, and we can bring great pressure to bear on those countries whose records on human rights are still lamentable. But we can only do this if we ourselves maintain an impeccable record at home otherwise we are open to accusations of duplicity and hypocrisy. Without that moral authority, it becomes more and more difficult. The Foreign Office gets this. Some of your colleagues get this. Dominic Grieve, your Attorney General, said we would become a “pariah nation” if we walked away from Strasbourg. Do you really see it as a badge of honour to join Belarus as the only other nation in Europe that is not a member of the ECHR?
4. Which bits of the Human Rights Act wouldn’t make it into your Bill of Rights?
You and Theresa May are committed to abolishing the Human Rights Act and replacing it with a British Bill of Rights. I’ve heard it so many times over the past years but it’s still meaningless unless you can outline which of the rights protected in the HRA you would jettison, or which new ones you’d include. Otherwise it's pretty vacuous nonsense. Perhaps you want to dump the right to life, or the protection against torture? Please do shed some light.
I’m guessing you’d quite like to dump Article 8 – the right to a family life. But do you realise that this isn’t an absolute right? It has to be balanced against other responsibilities and always is. Dumping Article 8 would strip our citizens of one of key protections of their privacy we have. I'm not sure you'd want to be remembered for that.
5. Do you think judges have any role in holding governments to account?
Given the cuts to legal aid on your watch, the curtailing of judicial review and the almost daily railing against human rights, it’s hard not to conclude you’d rather not be held to account by judges. If this is the case, perhaps you might explain why you think governments should not have to abide by the rule of law, yet everyone else has to? What makes governments different from its citizens?
In addition, experts who know more than you or I, point out that even if we abolished the HRA and left Strasbourg, some of the judgements you've railed against would still have happened in our Supreme Court because of case law and other international obligations. Perhaps you want to leave the UN too?
I'm on record as saying that the Strasbourg court needs to reform and modernise. The quality of the judges is an issue and more can be done to take account of each nation's unique circumstances. But I want to shape it from the inside, not turn on my heels and flounce away.
Isn't it simply the case you just want judges to do as you want? That's a system I don't want to live in - an independent judiciary creates a positive tension we should be proud of, not seek to undermine.
6. Do you believe in the universality of human rights?
There is a fear that the Tory idea of a British Bill of Rights is nothing but a hierarchy of rights, which some groups have full access to, while others have their rights limited. We know that the latter will be the marginalised, the vulnerable and minorities. Using a very small number of cases as justification for a full scale dismantling of our human rights legislation would be a disgrace and would leave many of the already downtrodden at the whim of the power of the state. Isn't it a bit odd that a political party that prides itself on being on the side of the individual citizen against the state wants to abolish one of the few mechanisms that can make that a reality?
Conclusion
There's going to be a lot more of this windy rhetoric between now and the election. Labour is determined to fight hard to protect our human rights laws; to keep the Human Rights Act and continue to be signatories to the European Convention of Human Rights. We will also stay members of the Strasbourg court and at the same time try to improve the way the European Court works. Anything less would expose our citizens to human rights abuses and let down millions abroad who look to us for moral authority.
Rt. Hon Sadiq Khan MP is Shadow Secretary of State for Justice
New Statesman
