Tories must get behind the Human Rights Act, for justice's sake

Tories must get behind the Human Rights Act, for justice's sake

Conservatives have slated the HRA, but until they come up with better legislation they should ensure magistrates understand it

By Rupert Myers

It's rare to come up with a reform that would cost nothing, and rarer still to find one that could be implemented immediately and lead to a fairer, cheaper legal system. The Liberal Democrat justice minister Lord McNally inspired my idea for such a change this month when he diagnosed a serious problem with a component of the justice system: he suggested that the Human Rights Act is not properly understood in this country. His comments have been called the "clearest signal yet" that the government, which rubbished the Human Rights Act when in their ascendancy, will not change it.

In 2007, David Cameron made plain his hostility towards the HRA when he proposed that we

"abolish the Human Rights Act and replace it with a British Bill of Rights, which sets out rights and responsibilities. The fact that the murderer of Philip Lawrence cannot be deported flies in the face of common sense. It is a glaring example of what is going wrong in our country. What about the rights of Mrs Lawrence? The problem for this government is that the Human Rights Act is their legislation and they appear to be blind to its failings."

Last November, Michael, now Lord, Howard QC also called for the HRA to be replaced. In 2008, Nick Herbert, now minister for police and justice, considered that the Act had not led to "a culture of respect for rights, or even a culture of awareness, but rather a trend that has seen rights devalued and misapplied".

The government will know, given its appreciation of "nudge" politics, that comments such as this have an impact. There is now a long history of newspapers, media outlets and politicians slating this legislation. The cumulative effect of these attacks, the concentration on weaknesses in what is flawed but well-intentioned and useful legislation, is to diminish the perception of the Act in the minds of the public. The bravest, smartest government comment on this problem has come from our new secretary of state for justice, Kenneth Clarke QC: "It is the duty of politicians to stand up to the tabloids, to turn around and argue, not let them whip up feelings that are inaccurate."

It's the coalition's legislation now, and they have two choices: they can replace the Act, or they can live with it, and the signs now point to the latter. In those circumstances, they have a duty to explain the legislation and defend its strengths. This matters to more than just the public mood. The vast, overwhelming majority of criminal cases are decided by untrained members of the public. Magistrates, in almost every respect, are no different from you or me. They read the same newspapers, vote in the same elections, and hear the same leaders condemn legislation that members of the public who come before them should be entitled to believe in and to rely upon. How much weight does the average person give to the Human Rights Act? "Human rights? What about human responsibilities and the rights of the victims? What about society?" The refrains are all too familiar, the constant reference to the "European" origin of these rights (the first draft was actually written by a British Conservative) an all too obvious attempt to play down their usefulness, and vitality.

When a government is on the record as hostile to the legislation, it reduces the likelihood that members of the public sitting in judgment on their peers will consider and administer it properly. This is not an arid hypothesis. It is acknowledged in private by almost every lawyer I have spoken to on the subject that magistrates can and do err when applying the Human Rights Act, and that frankly, in some courts one might as well be speaking in a different language when addressing the court on human rights. If the public doesn't get the Act, why should magistrates? This means that most of the defendants in this country, and for that matter the victims and witnesses, may not be getting a fair hearing.

One solution is the British bill of rights, which could be an excellent idea, but looks unlikely to happen any time soon. The cheaper, immediate solution is for a serious frontline politician to stand up at the Conservative conference next week and praise the good parts of the Human Rights Act, the application of it to soldiers and detainees and the protections it affords individuals against injustice. So far, all this government has done is put the wrecking ball through the old house while the plans for the new one are still being drawn up. It is the duty of politicians to turn around and argue for the Human Rights Act while it remains the best legislation we have for ensuring the rights of individuals.

Lord McNally is one of a number of coalition outriders for the retention of the HRA. Conservative attorney general Dominic Grieve QC is "broadly comfortable" with the Act. In 2006, Ken Clarke branded the move to a British bill of rights "xenophobic". Nick Clegg, the deputy PM, has even claimed this year that he will lead the charge for the Human Rights Act, although when this campaign is due to start in earnest is unclear. A band of Liberal Democrats and Conservatives have clearly influenced the government's climbdown on the Human Rights Act, but this change must not be a silent one.

Magistrates should receive specific and thorough training in the Human Rights Act and the great importance it has as a constitutional statute, more than the day's training they get at present. There is a need for more deep-rooted encouragement to endorse and appreciate the strengths of the Human Rights Act, not as a lofty principle for more senior courts to consider, but as a bedrock to justice. Members of the public who volunteer for the good of the community to administer justice cannot be immune from the public relations onslaught the Human Rights Act has endured.