Before the election the Conservative party campaigned on the basis that they would repeal the Human Rights Act. The implication, from some frontbenchers such as bed and breakfast tsar Chris Grayling, was that they would rip up the European Convention on Human Rights (ECHR) and replace it with a British bill of rights.
To anyone with a basic grasp of constitutional principles, never mind an awareness of the legal position, this was palpable nonsense. The UK is a member of the Council of Europe. It is bound by the ECHR. Before the Human Rights ACt (HRA) the UK was bound to follow the decisions of the European Court of Human Rights (to abide by our international obligations). The passage of the Human Rights ACt was a mechanism whereby British courts were to be given an opportunity or pronounce on ECHR related matters – from a British perspective, taking account of and paying due respect to the approaches in other countries.
To withdraw from the ECHR the Uk would have to withdraw from the Council of Europe, and as the EU now recognises the ECHR in case law and member states are expected to sign up to the principles of the ECHR, would involve withdrawal from the EU too.
And, this is ignoring the problems on repealing the HRA, and ignoring the ECHR,that would arise within the devolution settlements where each devolved government, and each devolved assembly or parliament is under obligations to act in compliance with the ECHR.
So, any suggestion that the ECHR could be ripped up for Britain, was a non-starter. The idea that a British Bill of Rights could supplant the ECHR was a non-starter too – as long as the UK was a member of the Council of Europe the international obligations would remain, the Uk bound by them (as it was before the HRA).
Of course, when Conservative politicians spoke about the British bill of rights, and the repeal of the HRA before the election they weren’t questioned on the impracticality. At the time I wondered why they weren’t. Why did no hack follow up Grayling’s spiel and ask if the Uk would withdraw from the Council of Europe?
The reality emerged yesterday.
Guess Who model Nick Robinson, BBC political editor, wrote a piece about the tension in the coalition between Conservatives and Liberal Democrats on human rights.
"Perhaps the easy solution will be for the Tories to stick with the reality of their position pre-election? For months now I’ve been told privately that whatever their manifesto might say they’ve not actually found any way to carry out their promise."
Did he or his colleagues bother asking why? of course not. It’s because even if they repealed the HRA the ECHR would still apply. They can’t do what they pledged without withdrawing from the Council of Europe (and on what basis would any party do that? Because they believe we should be able to torture our citizens?)
He then offers this candid observation in an update.
"The issue of human rights and terror suspects is even more complex than I thought. Even if Britain replaced the Human Rights Act with a Bill of Rights we would, I’m told, still be subject to the European Convention of Human Rights (ECHR). "
Well, the penny finally dropped. Whoop de doo, Nick. This is not complex. This is basic principle. And if he didn’t know that – how could he effectively question the Conservatives on their policy pre-election? Oh, that’s right. He didn’t. The Conservatives were not questioned on the policy before the election because the journalists didn’t understand it was cobblers. How can a political editor get to that position without having a basic grasp of constitutional principles?
But what of the party that formulated the policy?
Those that understood it – such as Dominic Grieve – thought the policy a nonsense. So why did it end up in the manifesto? Was it because the people writing the manifesto were too stupid to realise their policy could not be implemented? Or was it because they knew that it could not be implemented – but also knew that with an ignorant media they would not be tested on it?
ETA Mark Easton, a BBC editor who understands these things, makes a similar substantive point about the relationship between ECHR and HRA. We like him. He knows what he’s talking about.