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Lord Falconer
Lord Falconer, the shadow lord chancellor, said there is doubt over whether the proposed bill will even make it through the Commons. Photograph: Jack Sullivan/Alamy
Lord Falconer, the shadow lord chancellor, said there is doubt over whether the proposed bill will even make it through the Commons. Photograph: Jack Sullivan/Alamy

Attempt to scrap Human Rights Act will not get past Lords, Falconer warns Gove

This article is more than 8 years old

A new British bill of rights is expected to be included in the Queen’s speech, but shadow lord chancellor says upper house would be within its rights to reject it

The new shadow lord chancellor, Lord Falconer, has predicted that the Lords will throw out any attempt by the new justice secretary, Michael Gove, to replace the Human Rights Act. A new British bill of rights is expected to be included in next week’s Queen’s speech to replace the act passed by the Labour government in 1998 as a way of incorporating the European convention on human rights into UK law.

Falconer, speaking with the authority of the shadow cabinet, warned on Friday: “The Lords over the past 20 years have come to see their role as guardians of our constitution, and if the Conservative measures strike at fundamental constitutional rights, the Lords will throw this back to the Commons.”

He told the Guardian that the Lords, where the Conservatives do not have a majority, would be within its rights under the Salisbury convention to throw out the measure altogether – since the Tories’ intentions were only set out vaguely in their election manifesto. If the Lords threw out the bill the government would need to use the Parliament Act, probably in 2017, to force the bill on to the statute book without Lords consent.

Falconer described the plans as a dishonest muddle and said with an overall Commons Conservative majority of 12 and civil libertarian Tory MPs uneasy at the plans there was a “question mark” over whether the bill could get through the Commons without defeats.

An October 2014 policy document published by the Conservatives expressed a general desire for the UK to remain part of the European convention on human rights, but only if “the Council of Europe will recognise these changes to our human rights laws”. It contains the warning that “in the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the ECHR, at the point at which our bill comes into effect”.

The Conservative manifesto repeats the party’s intention to “scrap” the Human Rights Act and replace it with a British bill of rights. It also promises to “curtail the role of the European court of human rights”, break the formal link between British courts and the European court of human rights and make the supreme court the ultimate arbiter of human rights matters in the UK. In contrast to the autumn policy paper, it does not mention withdrawal from the convention.

The appointment of Gove, along with that of Dominic Raab as justice minister, suggests David Cameron recognises the large intellectual, legal and political hurdles in turning the manifesto commitment into law.

The Tories have so far been unclear on the extent to which the British bill of rights would merely replicate the existing rights in the convention or the extent to which parliament would in future be entitled to ignore European court of human rights rulings.

Falconer argued: “The basic pitch that the Tories are making is that you can have some form of British human rights that don’t involve things that are quite unpopular – such not being able to deport terrorists if those people are going to be tortured or killed when they get home. But you cannot have reliable human rights if only the human rights that survive are those that the executive are happy to tolerate, and not the human rights that are inconvenient to the executive or unpopular. If you only support those sorts of human rights then the citizen is completely at the mercy of the state because the state simply changes those rights when it does not like the answers the courts are giving.

“The Tories are fooling someone. It is either fooling the British public that it is possible only to have rights that the government likes, and still remain within the ECHR and the Council of Europe, or it is fooling both the British public and the Council of Europe that we are going to leave the convention and therefore the Council of Europe.

“The significance of having a commitment to an above-nation convention means there is some body, namely the European court of human rights, that sets out the position that is not in any way changeable by the British government.”

Labour’s record on civil liberties has sometimes been ambivalent, but Falconer is determined to send a clear and early message. He said: “We in the Labour party unreservedly defend the current settlement on human rights. We accept the courts will make some unpopular decisions but that is the price you pay for the rule of law. So far these Tory proposals are dishonest, incoherent and damaging and I really hope that Gove – who is by all accounts an intelligent person – will look at this again.”

Withdrawal from the convention would send “an appalling signal”, Falconer said, adding: “It would confirm to so many countries in the world that adherence to human rights is wrong and they could forever cite the UK. It would also be completely at odds with our commitments to other conventions such as the UN charter.”

He also said it would drive a further wedge between Scotland and England since Scotland would oppose withdrawal, taking a fundamental building block out of the devolution settlement.

He accepted there were reasonable proposals for reform of the European court in Strasbourg such as speeding up hearings and giving full support to the notion the court should allow greater scope for national interpretations.

He argued the concern over sovereignty of the UK was misplaced. He said: “The supreme court in the UK in the current context can, and does from time to time, depart from existing European court decisions but if the European court determines that the convention means something else then as a matter of international law the UK government is obliged to change the law to give effect to that. Invariably the UK government has to do it through parliament and it is for the UK parliament to ultimately make the decision. This process properly respects parliamentary sovereignty and accepts the supremacy of the supreme court.”

Falconer added: “The UK supreme court already is the final arbiter here. It decides the law. If the European court says otherwise it is not then a matter for domestic law to be changed. It is for the UK government to change the law by statute.”

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