The European Court of Human Rights (ECHR) will be central to Tory planning for the EU referendum. The Tory manifesto gave a clear commitment to scrap the 1998 Human Right Act (HRA) and curtail the role of the European Court of Human Rights. It seems likely that there will be a measure paving the way to the Act’s replacement with a British Bill of Rights in the first year of this new government. This is a key part of Cameron’s plan to manage the EU Referendum which he unwisely conceded in order to appease his unruly right wing.
He has been told for some time now that the EU is in no hurry to make any treaty changes and it has also been made clear to him that the EU will not amend its core freedoms (in particular freedom of movement for labour) or its acquis (the body of acquired EU law). Scrapping the HRA and even withdrawing from the ECHR are then to be the red meat he can offer to his rebellious back-benchers if he cannot achieve the treaty changes or opt-outs from the EU fundamentals.
The problem with this neat package of political management is that sacrificing the HRA/ECHR opens up an international and legal quagmire. A government policy paper published last October, only 8 pages long, followed a Coalition commission which over 2 years tried to reach agreement on what a British Bill of Rights might look like, but proved inconclusive. It promised to break the link between British courts and the ECHR, to limit the use of human rights laws to the most serious cases, and to limit their reach in the UK (e.g. so that British armed forces were not subject to human rights claims).
That opens up a can of worms. What if Scotland, Wales and Northern Ireland, which are within their legal rights under the devolved settlements to remain in the ECHR, decide to do so, as they almost certainly will? Precisely which internationally agreed human rights does a Tory Britain wish to drop? Is Britain really prepared to threaten the legitimacy and status of a court entrenching human liberties across Europe? It is unlikely this transparent act of political legerdemain will pass through Parliament: the House of Lords will certainly vote against it, and maybe (with a Tory majority of just 12) enough Tory MPs also who value preserving the union more than these subterfuges.
What all this reveals is that it’s not the HRA/ECHR which can be accused of dysfunctionality so much as the first-past-the-post voting system (3.88m votes to deliver 1 UKIP MP compared with 26,000 per Tory MP), the powers – or lack of them – for English city regions, the influencing of MP numbers for political advantage, the funding of political parties, and the centralised control over taxation for local authorities. But they’re not part of the political fix – yet.