Can Gove push through plan to scrap human rights act?

Michael Gove’s appointment as justice secretary, replacing Chris Grayling, returns the former education secretary to the front line of British politics.

As education secretary between 2010 and 2014, Mr Gove antagonised many in the teaching profession. Some said his move last July from education to the Conservative chief whip’s job was at the behest of Lynton Crosby, Mr Cameron’s election strategist, who was worried about his “toxic” public image.

And Mr Gove is already ruffling feathers as justice secretary. He has been tasked with overseeing the Tories’ 2015 election manifesto pledge that “the next Conservative government will scrap the human rights act, and introduce a British bill of rights.

However, he is already facing rebellion among some backbench MPs – including Eurosceptic David Davis.

Speaking to the Hull Daily Mail?, Mr Davis, said: “I’m afraid we will come into conflict with the European court and I don’t want us to leave it. If we leave, it’s an excuse for everyone else to leave. So I think that could be quite an interesting argument, come the day.”

Prime Minister David Cameron has a majority of just 12, giving Mr Davis and others the power to defeat laws the government tries to pass.

‘Unelected judges’

Those pressing for repeal of the act argue that it does little to protect the liberties, or the safety, of British people, and that it allows judges – who are not chosen by popular vote – to make substantive judgements about government policies.

Bill Cash, the Eurosceptic former Conservative attorney-general, has written on the Total Politics website that “it should not be up to unelected judges to decide on what amounts to policy matters in the British national interest”.

And earlier this week the Daily Mail listed 15 case histories which it says shows “criminals and legally aided lawyers using the legislation to their advantage”.

Big difference?

The fact is that the Conservatives also promised to abolish the human rights act in their 2010 manifesto, an ambition lost in the accommodations of coalition government.

And the view of some lawyers and legal commentators is that until we see the details of what is proposed, it is unclear how big a difference repeal of the human rights act will make.

That is because the act, which received royal assent in 1998, aims to incorporate into UK law the rights contained in the European Convention on Human Rights (ECHR), drawn up by the Council of Europe in September 1953. All 47 European countries, with the exception of Belarus, are party to the convention.

So even if the new Conservative government replaces the 1998 act with a promised bill of rights, the UK would still be party to the terms of the ECHR – whose post-war drafting, incidentally, was overseen by Sir David Maxwell Fyfe, the British Conservative politician and lawyer.

Read more: UK human rights commission fails to agree on bill

Symbolic ‘win’

It may be, therefore, that by appearing to act quickly on this issue, the Conservatives are moving to appease supporters for whom the term “human rights” represents part of what they see as the country’s “something for nothing” culture.

“The only reason for the rush to repeal is for there to be a symbolic ‘win’ in the first 100 days (of the new government), which could guarantee media coverage. This is about politics, not law,” says David Allen Green, legal commentator and head of media law at Preiskel solicitors.

What is more, he says, repeal of the act has been anticipated for some time, and as a result courts have developed the common law over the last few years in anticipation – “so repeal may not make much impact in practice”.

Devolution issues

Any attempt to lose the human rights act would also involve complex devolution issues in relation to administrations in Northern Ireland and Scotland.

The outgoing justice secretary, Chris Grayling, said that the UK could withdraw from the ECHR if the Council of Europe rejected its proposals for a bill of rights. But a commitment to incorporating the ECHR into Northern Irish law was central to the 1998 Good Friday agreement.

North of the border, meanwhile, the human rights act is enshrined in the Scotland act of 1998 which set up a devolved Scottish parliament. It is not yet clear whether a British bill of rights would automatically apply in Scotland.

Speaking on Channel 4 News (see video below), SNP foreign affairs spokesman Alex Salmond suggested the UK government would not be successful in repeal the act “because they’d need the legislative consent of the Scottish parliament to do away with the Strasbourg court.”

He continued: “We support the human rights act because we like people being able to sue governments against things like the ‘bedroom tax’, and have basic human rights we should not be frightened of.

“So I don’t think the Scottish parliament, under the Scottish National Party, has any chance whatsoever of giving legislative consent to such an insane proposal.”