The Tories and their secret new Human Rights Act
For months now I have been warning anyone who will listen about the darker motives behind the Conservative commitment to enacting new local government legislation if it comes into power in May.
Unfortunately, no-one’s been listening.
Local Government Minister John Denham couldn’t even be bothered to reply to my letter, even though I pulled rank as a Labour leader on a local authority, while the New Local Government Network think it’s all a lovely idea:
There are positive elements in this [Conservative] paper [on local government] which should be welcomed, including…… developing the ‘power of wellbeing’ introduced in 2000 into a wider ‘power of general competence’ as a way to remove any doubts about the right of councils to act.
Now, hidden deep in the bowels of Tory-run Local Government Association, is the draft legislation which it expects its new friends in government to enact as soon as possible after May, and I’m inviting people to wake up and smell the danger.
Because, in a step which may seem utterly perverse from a party which bangs on about what terrible damage the Human Rights Act 1998 has done to our country, the key sections of the draft act are modeled closely on – you’ve guessed it – the Human Rights Act 1998.*
Only this time, instead of enshrining in law what might be considered fairly basic rights of individuals to a fair trial and whatnot, this act enshrines in law the right of local authorities to do whatever the fuck they want to do if it saves/makes a few quid, regardless of the real effects on their local population.
The new legislation will have the same legal status as the Human Rights Act. Yet its massive implications – not just for residents of the local authorities who will use it most unscrupulously, but also for the whole constitutional relationship between parliament and local government – are being smuggled through the legislative process with barely a whisper of discontent or hint of proper scrutiny.
I’ll be back tonight with more detailed analysis, but please, take a look at the bloody thing first.
* The explanatory notes with the LGA’s draft legislation are quite clear:
Clause 3 requires legislation to be interpreted as far as possible in a way which is compatible with the power of general competence. This applies to all legislation, whenever enacted. Clause 3 does not affect the validity, operation or enforcement of any incompatible primary legislation or of any incompatible subordinate legislation, if primary legislation prevents removal of its incompatibility. The drafting of clause 3 is based on section 3 of the Human Rights Act 1998.
Clause 4 allows the courts to make a declaration of incompatibility where they find that primary legislation is incompatible with the power of general competence. The continuing validity and enforcement of the legislation is not affected by such a declaration, and a declaration is not binding on the parties in the proceedings in which it is made. The drafting of clause 4 is based on section 4 of the Human Rights Act 1998 (my emphasis).
I am not a constitutional lawyer but that looks quite scary to me. It could cut away substantially at Judicial Review – for any decision made which is unfair in its procedure, or irrational in its conclusions the authority could always plead that the decision mechanism or decision itself were in the best interests of their area, a point on which the court does not have the competence to rule.
It also seems hard to fathom what parts of it mean, specifically:
s1(3) says that the power does not enable local authorities to do anything expressly proscribed by statute.
s4 (2) gives the court a power to declare a statute incompatible if it is incompatible with the power.
How do these run together?
Barney @1: That is precisely the bit that has me somewhat stumped at the moment. Sensible minds think alike. I think what it’s about is the distinction between an ‘express prohibition against doing something’ and ‘the power to do something which is out of keeping with statutory duty’. So, at it’s most simple, councils will not be allowed to murder people who don’t recycle, but will be able to ignore the statutory duty to, let’s say, house homeless people.
i’ll be looking in more detail at some of this in a third post, but it is confusing at first sight. I’ve written to Labour reps on the Local Govt Association (which, being Conservative-led, has had the bill drafted in preparation) to get their view on this.
Barney @1: Sorry, should say there’s a more detailed examination of what I think the tories are planning in a second post due up at 11am.