Why Chris Grayling’s appointment as Justice Secretary is significant #2: The fate of the Human Rights Act

In an earlier post, I explained why the appointment of a non-lawyer – Chris Grayling – to the position of Justice Secretary and Lord Chancellor is significant. But as well as being noteworthy because Grayling isn’t a lawyer, the appointment is potentially important for another, more specific reason. As Justice Secretary, Graying will play a pivotal role in deciding what (if anything) is to be done once the Commission on a Bill of Rights produces its report.

The Commission was established against the background of sharp disagreement between the Conservative and Liberal Democrat coalition partners about the Human Rights Act 1998. The right-wing of the Conservative Party dislikes the Act greatly. Not only does it sometimes lead courts to uphold the basic human rights of prisoners, sex offenders and others who attract the kneejerk condemnation of certain politicians, but it also requires UK courts to apply European law (in the form of the European Convention on Human Rights), thereby automatically raising the hackles of the Conservative right. (For this purpose, at least, the Prime Minister appears to be a member of that group: the mere thought of implementing a judgment acknowledging prisoners’ right to vote in elections made him feel “physically ill”.) The Conservatives therefore pledged in their 2010 manifesto to repeal the Human Rights Act and to replace it with a “British Bill of Rights” – the implication being that this would produce different outcomes, more in line with what the Conservatives perceived to be British notions of fairness and justice. In contrast, the Liberal Democrats are strongly supportive of the Human Rights Act.

The Commission was given the difficult – probably impossible – task of attempting to move beyond this apparent impasse. When it issues its report – due in December – it will land on the desk of the new Justice Secretary. His predecessor, Kenneth Clarke, was generally supportive of human rights: a quality he demonstrated by publicly criticizing the Home Secretary when she sought to rubbish the Act by advancing a garbled account of a judicial decision taken under it. (She said – incorrectly – that a person’s deportation had been blocked because a court had ruled that separating the person from his cat would breach his human right to respect for family life. This, said Clarke quite rightly, was “child-like” and “complete nonsense”.) It was generally felt, therefore, that the Human Rights Act was relatively safe so long as Clarke was Justice Secretary. (This should not be taken too far, though: as Shami Chakrabarti has pointed out, Clarke’s commitment to human rights was not unqualified, given his willingness to pilot through Parliament the Justice and Security Bill, which, if enacted, will substantially extend the circumstances in which courts can hold “secret hearings” – a fundamental affront to the principle of open justice.)

What, then, does Clarke’s successor think about human rights? There is relatively little in the public domain to go on at present, but there is a general sense that Grayling is better disposed than was Clarke towards the right-wing critique of the Human Rights Act. Grayling once suggested that people who run bed and breakfasts “in their own home” should legally be able (as they presently are not) to turn away gay couples. It is also reported that Grayling, in 2008, said that the Conservatives “would tear up the HRA and start again”. Of course, this is scant evidence on which to predict what course of action Grayling may favour when the Commission’s report hits his desk – but it is fair to say that he appears less sympathetic than his predecessor to the present arrangements for protecting human rights.

All of this is subject, however, to two important qualifications. First, the likelihood of the Commission’s formulating recommendations that can be accepted and implemented by the coalition parties prior to the next election is slight. At most, the Commission’s report is likely to be a reference point for positioning on this issue in the run-up to the 2015 election. And, second, even if the Commission were to recommend replacing the Human Rights Act with the sort of legislation that some Conservatives want to see – that is, legislation that would give the courts more limited powers to uphold fundamental rights – the scope for actually adopting such an approach is limited.

That is because the Human Rights Act simply allows British courts to enforce rights that – with or without the Act – bind the UK anyway, for as long as it is a signatory to the European Convention on Human Rights. And so repeal or reform of the Act would do nothing to change the fact that those rights would remain binding upon the UK as a matter of international law. Sounding off about the Human Rights Act is one thing; advocating Britain’s withdrawal from the Convention would be another matter altogether. It would certainly establish a politician’s “right-wing” credentials – but at the cost of (among other things) signalling that Britain refused to abide by the minimum human rights standards that apply to dozens of countries across the continent.