If Stefan Enchelmaier, Professor of European Law at the University of Oxford, “almost missed” the mention of the Human Rights Act (HRA) in the latest Conservative manifesto, most people will have. That is probably the point.
Buried on page 48, the 2019 manifesto contains a single mention of the party’s pledge to “update” the 1998 HRA, which brings the European Convention on Human Rights (ECHR) into domestic law. It doesn’t specify what an update looks like, or when it will happen (beyond “after Brexit,” which isn’t much of a clue). The text is not bold; nor italic. The language is euphemistic and vague, indicating that the update will “ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.” This is not a pledge intended to draw attention.
The attempt at innocuousness marks a change. David Cameron’s 2015 manifesto, which also promised the infamous “in-out referendum,” committed—five times over; three in bold—to “scrap” the HRA and introduce a British Bill of Rights. This pledge came despite the failure of the 2010 coalition’s especially set-up Bill of Rights Commission to agree on its content, and by the end of 2015, there was still no British Bill of Rights. In December 2016, it was announced that HRA repeal was delayed until after Brexit; and the 2017 Tory manifesto pledged to remain signed up to the ECHR “for the duration of this parliament.”
During this time, prominent Conservatives politicised the HRA as “Labour’s.” This is odd given it passed with overwhelming cross-party support in 1998. What is more, the ECHR itself was shaped by Winston Churchill and Conservative lawyer David Maxwell-Fyfe. In the recent past, the Conservatives also wove the legal sovereignty issue into the Brexit debate, never mind the fact that leaving the EU does not entail leaving the ECHR. Their statements were often inflammatory, like Cameron’s feeling “physically sick” at the thought of prisoners’ right to vote, or simply false, like the “pet cat” Theresa May said prevented deportation (in reality, Judge Gleeson had found that the deportee was in a stable relationship, and was therefore allowed to stay under the HRA, and that the couple also kept a cat).
“There has really been a populist misrepresentation of what the law is,” said Helen Mountfield, barrister, legal scholar and principal of Mansfield College, Oxford, suggesting that politicians and the populist press have in part fuelled the perception that the HRA is “a rogue’s charter.”
Given the recent din they have made, it is notable that the Conservatives’ new promise to “update” the HRA is sheepishly tucked away in a paragraph that, concerningly, promises other sorts of constitutional review, including looking at “the relationship between the government, parliament and the courts.” The real question is: what does it mean?
“The word ‘update’ is interesting,” said Shreya Atrey, Associate Professor in International Human Rights Law at Oxford. “They are really relying on not being clear so that later they can do what they want. We can say that repeal is off the table. That is a good thing, and we should hold them to account, dare they cross that line. But given their past record, we can say that they mean to ‘weaken’ the commitments that we have to the ECHR.”
Nadia O’Mara, policy and campaigns officer at Liberty, an advocacy group, also warned that although an “update” “might sound innocuous, even progressive, given the Conservatives’ history of trying to ‘scrap’ the HRA, it could lead to something far more sinister.”
“While the manifesto pledge is scant on detail, recent Conservative announcements suggest the proposal is likely to be aimed at when and where those rights can be enjoyed and who can be held to account for their violation,” she said.
Indeed in other policy announcements there have been some indications about what an “update” might entail, including a change such that the HRA’s protections do not apply retrospectively (so before 2000, when it came into force), and a revision to ensure its prohibitions do not apply to the actions of British forces overseas. Mountfield also posed the question of whether the update might try to limit responsibility for sending people, like illegal immigrants, to places where they might have their rights breached—something which, if it were to occur, would be of even more concern.
But whatever the eventual shape of the HRA, the systematic attacks on it are symptomatic of a troubling trend in Britain: populist attempts to undermine the perceived legitimacy of the rule of law.
“It has become more acceptable to attack the judiciary,” said Mountfield, recalling the “Enemies of the People” headline used by the Daily Mail after the case on triggering Article 50 in 2017. “So I don’t think this is just about human rights. I think this is a battle about mechanisms for accountability of governments to the law. It is an attack on our institutions, and that’s what is worrying. It’s a populist moment across the world, and this is our manifestation of it."
Enchelmaier suggests that the reason Britain is uniquely floating withdrawal from the ECHR has historic roots. Other signatories to the ECHR were losers in WWII, and had a moment of crisis where they had to start from scratch, actively rebuilding their institutions to protect the dignity of the individual. In these countries, “nobody complains about the ECHR curtailing the room for manoeuvre of the government.”
Britain, by contrast, “has never had to rethink its fundamental arrangements. It’s what has been called the ‘price of victory’,” he explained. “It is all part of the Brexit story.”