Conservative party policy is to "replace the Human Rights Act, which has undermined the government's ability to deal with crime and terrorism, with a British bill of rights." The shadow justice minister, Dominic Grieve, does not explain how the act has undermined the government's powers, nor does he say how a bill of rights would differ from the European convention on human rights, to which the UK is a signatory.
The only country in Europe which has not adopted the convention is Belarus. Do the Conservatives really want to leave us out in the cold with a country whose president is described as "Europe's last dictator"?
The act entrenched the convention into domestic law. However it appears that it is seen by some commentators as a permissive form of legislation giving rights to criminals and removing them from victims. The former Conservative leader, Michael Howard, famously complained that it permitted a prisoner to watch hardcore pornography in his prison. He omitted to mention that this claim was dismissed.
The other criticism of the act is that it encourages "judicial activism" and "undermines the will of parliament". At present it allows the judges to make a "declaration of incompatibility". This creates a form of judicial pressure to reform a piece of legislation in order to conform to the European convention. It would be illogical for the government to make legislation which was specifically incompatible with the convention and so this particular provision within the act is entirely rational. The government is not obliged to act on such a judicial recommendation although it would risk costly litigation if it did not do so. Parliament still remains sovereign.
Furthermore the Strasbourg court has adopted the concept of a "margin of appreciation". This permits national courts to interpret their laws within a wide remit. The nation state should have discretion in enacting or enforcing its own laws. Some commentators remark that this doctrine recognises that the convention rights are not contradictory, but complementary. For example, cases regarding abortion in Ireland generally follow the local cultural norms and the European court would be loth to find a violation. However the Conservatives still rage in response to various articles in the Daily Mail where terrorists are granted asylum and victims of burglary are charged with assault.
The United Kingdom was one of the founding members of the Council of Europe in 1949. Now there are 47 signatories, representing virtually every European country. The council has a variety of activities which include the protection of the rule of law, democracy and human rights within its member states. The most famous instrument of the council was the European convention on human rights, adopted in 1950. This instituted the European court of human rights in Strasbourg.
Although the British government was required to adhere to the convention and the case law of the court, it was not until 1998 that the Labour government officially incorporated it into domestic law. This meant that for the first time British judges were obliged to apply directly the rights under the convention to the cases which were before them. Indeed this was a logical step. These rights are evidently uncontroversial. They include the right to life, prohibition of torture and the right to a fair trial, among others. In signing up to the convention the UK government affirmed that it believed in them. The Human Rights Act did not add or remove any of these rights. Indeed no domestic legislation could alter them. The government would simply have to withdraw from the Council of Europe. The unique aspect of the Strasbourg court is that any individual within any of the member states has a direct right of petition. In this way individuals are empowered to enforce their rights against a government which might be violating them. It is an entirely libertarian notion that grants power to the people.
But what would happen if a Conservative government wished to repeal the Human Rights Act? Apart from the political upheaval created in terms of Britain's relationship with the rest of the Council of Europe there is a practical element at stake. If domestic courts were no longer required to apply the convention there would be a great increase in the number of applications to the European court. At present there is a backlog of approximately two years for each case sent to Strasbourg. If this became greater and the government were forced to defend even more cases then it would have to devote a significantly greater amount of its resources towards this end. In the present situation the government has to put its money where its mouth is. It supports the broad and noble cause of the European convention and encourages its judges to do the same. However if a Conservative government so disagreed with the principles behind the act, it would have to withdraw from the convention, and also from the Council of Europe.
Surely the unifying presence of all European states within the Council of Europe eventually serves a higher purpose, which is to work for democracy, rule of law and human rights across the continent. If the Conservative party does not have the courage of its convictions to support such aims then maybe it would prefer if the UK became more like Belarus.