Anthony Browne: Lies and truths about the Human Rights Act

The debate about the reform of the human rights legislation continues furiously after the conference, with David Aaronovitch in the Times today (£) denouncing Theresa May over the “cat flap”, and accusing the Tories of making up stories about human rights legislation to avoid talking about the economy.

Whatever the truth about that cat (does it have a name? Is it still alive? Has anyone interviewed it?), those who argue against reform of the human rights act normally use a range of arguments that don’t bear a lot of scrutiny. Both critics and defenders of the European Convention on Human Rights stretch the truth.  For example, one common misapprehension is that being a signatory to the Convention means you have to abolish the death penalty – but the total abolition of the death penalty is actually contained in supplementary Protocol 13, which countries such as Russia, Poland and Latvia have not ratified. Other misleading arguments include:

• Scrapping (or reforming) the Human Rights Act doesn’t mean pulling out of the European Convention of Human Rights – it would just mean returning to the position before 1998, when the Human Rights Act was introduced.  You could certainly have a more flexible interpretation of human rights at national level than at European level, although it would probably create work for lawyers.
• Being a signatory to the European Convention of Human Rights does not inevitably mean that the European Court of Human Rights can overrule either our own courts (such as our not-quite-Supreme Court), or parliament (the critical issue over votes for prisoners furore is who has a final say – British MPs or Strasbourg judges?). The supremacy of the Strasbourg Court’s judgements is a comparatively recent development - until 1998, when Protocol 11 was introduced, being a signatory to the European Convention of Human Rights did not necessarily mean accepting the supremacy of the judgements of the European Court of Human Rights over national courts and parliaments. This could presumably in theory be reversed, reasserting the supremacy of our own Supreme Court, or indeed of our supposedly sovereign parliament (although there would also be conventions about international treaty obligations to navigate).
• Leaving the European Convention on Human Rights does not mean leaving the EU. This charge was made repeatedly by Labour before the 2005 election, to scare the British public about Tory proposals. But the spokesman of Jose Manuel Barroso, the president of the European Commission, was forced to make clear in an on the record statement that leaving the Convention would not mean leaving the EU – members of the EU are not required by treaties to be signatories of the ECHR, but only to abide by international standards of human rights (I covered it as Europe correspondent of the Times). In fact, it would be awkward for the EU to make being a signatory of the ECHR a condition of membership, because the ECHR is the creature of the far wider body the Council of Europe (which includes such countries such as Russia, Azerbaijan and Armenia). Membership of the EU should be a decision for EU members, not subcontracted to the Council of Europe, which they don’t control.

The fundamental point is that the European Convention of Human Rights is not engraved in a tablet of stone. It is rather an evolving legal framework that has seen huge mission creep since it was written by British officials after the Second World War as a way of using international law to stop the re-emergence of dictators like Hitler and Mussolini. But there is nothing inevitable about its direction of change – we can, and indeed should, try and reform the Convention and the Strasbourg court, in the way that we want. That is something that both critics and supporters of the Human Rights Act could agree – and the cat might even purr its approval.