There are two ways ministers can avoid falling foul of human rights law. One is to govern with respect for universal human rights, as codified after the second world war in response to unspeakable atrocities. The other way is to redefine those rights, making their interpretation subordinate to political expediency. Boris Johnson’s government has chosen the second path.
The method is a new bill of rights, replacing the 1998 Human Rights Act, which incorporated the 1953 European convention on human rights into UK law. The change is not a withdrawal from the European court of human rights (ECHR) in Strasbourg, which adjudicates on the convention, but it is a dilution of the protections it represents.
A purpose of the bill is to give politicians a greater say in the way that courts interpret human rights law. That is expressed as action to thwart the spread of “trivial” and “bogus” claims, which “waste judges’ time and taxpayers’ money”. A “permission stage” will be introduced for courts to evaluate the merits of a claim – whether “significant disadvantage” was suffered – before it can go ahead.
The practical impact of those changes will depend on what is deemed trivial and how much harm is judged significant, which in practice means the principle of the underlying rights will be subordinated to a political prejudice against the claimant. Dominic Raab, the justice secretary, sees himself “injecting a healthy dose of common sense into the system”. But common sense is a test of cultural norms, not universal rights. Its interpretation in a Conservative administration fond of using statute for campaigning ends is not a reliable basis for impartial justice.
By making explicit the bending of legal principle to political preference, Mr Raab recognises that his bill amounts to a curtailment of rights – an obviously regressive step and an erosion of liberty, pursued as part of a longstanding vendetta against the Human Rights Act. Many Conservative MPs would go further still and reject the ECHR altogether.
The Strasbourg court has long been viewed (and despised) in rightwing Tory circles as an obstacle to evicting foreign-born criminals from Britain. With that scenario in mind, the justice department has made clear that the new bill will enable changes to the threshold for anyone resisting deportation on the grounds of entitlement to a family life. The test would be “overwhelming or unavoidable harm” to children – a formula that contains the sinister recognition that an unspecified but non-negligible volume of harm to children is quite acceptable in the eyes of the government.
The most recent cause of ECHR irritation to ministers was the grounding of a deportation flight to Rwanda la semana pasada. The claimants in that case were not criminals but asylum seekers, although the Home Office wilfully conflates the two by shutting down legal routes to sanctuary. The new bill will assert the capacity of UK courts to disregard such rulings in the future. That discretion already exists. The purpose of reinforcing it is to make a point about national sovereignty and Europe – a brand extension of the Brexit spirit to denounce an institution that isn’t even part of the EU. That is not to say Mr Raab’s proposed law is all symbolic. The dilution of fundamental rights and their subordination to ministerial opinion is a significant constitutional change. It is also a retrograde step for democracy.