After years of threats and Conservative manifesto commitments, it looks like a British “bill of rights” to scrap and replace the 1998 Human Rights Act is finally upon us. “My ministers,” read the Prince of Wales in his mother’s place on Tuesday, “will restore the balance of power between the legislature and the courts.”
But scratch the surface and you find this bill of rights to be precisely the opposite – not a document to empower ordinary people in post-Brexit Britain, but a power grab by the state. Remember, this is the prime minister who once illegally shut down parliament for irritating his political agenda – for the No 10 Praetorian Guard, “legislature” is euphemism for the “executive”.
Die Human Rights Act (HRA) is one of the greatest constitutional achievements of any government. Like all modern bills of rights, it constrains those in power. It draws on the best liberal rule of law traditions, as well as progressive internationalist instincts, ensuring that rights and freedoms are accessible close to home.
It incorporates the European convention on human rights into our law, meaning that anyone here can seek its protection before any public official or local court without a long and costly journey to the court in Strasbourg. Wat meer is, it doesn’t undermine our own legal system. UK courts must “take account of” Strasbourg decisions but they’re not bound by them. This allows domestic judges to consider our own cultural and legal contexts, while contributing to a continuing conversation about how the convention articles should be applied across Europe.
The freedoms themselves should be uncontroversial to all genuine democrats. There is the protection of life, freedom from torture, slavery and arbitrary detention and the right to a fair trial; there is the right to respect for privacy and family life, and freedoms of conscience and expression. The rule against discrimination in the delivery of the other rights and freedoms is key.
As well as achieving balance between domestic and international law, the act contains another exquisite compromise. It protects parliamentary sovereignty as the overarching principle of our unwritten constitution – it does not allow higher courts to strike down unconstitutional primary legislation.
In plaas daarvan, it enforces protections via more delicate means. Legislation needs to be read in a rights-compatible way “so far as it is possible to do so”. When this isn’t possible, higher courts can only issue a symbolic “declaration of incompatibility” – leaving it to parliament to decide what to do next. A cursory scan of Hansard reveals that ministers defending indefensibly broad new powers have relied upon the very HRA duty they now want to trash.
So, if the current scheme works and actually provides the balance the government claims to want, what are they really after?
Under their plans, our courts will no longer need to read European judgments at all. The government will tell some voters it is still abiding by the convention and others that it has “taken back control of our laws”. Extreme executive cake-eating and magical thinking will license our courts to diminish rights as set out by Strasbourg but never “exceed” them. Ministers will swear blind they are complying with it, while ignoring international law.
This has profound implications for all three devolution settlements, which legally require active compliance with the European convention on human rights. It is especially dangerous for the Good Friday agreement; a treaty requiring that these rights be guaranteed in Northern Ireland. As with the refugee convention, we will remain notional signatories, but the government will limit the scrutiny of the international community and domestic courts.
Gone will be the duty to read legislation compatibly with rights and freedoms if possible and, most likely, to make declarations in the face of incompatible laws. Public bodies’ obligations to respect rights will be slashed. This constitutional butchery can hardly be described as a bill of rights at all.
New hurdles will be placed in the way of human rights claims, such as having to prove “significant disadvantage” and “good behaviour”. How many rights violations throughout world history have been justified as being either trivial (being made to sit at the back of the bus) or aimed at “unworthy” people who have been perceived as acting badly?
If this anti-bill of rights had been in place, die Godin-Mendoza besluit, which famously reinterpreted the Rent Act (under the Human Rights Act duty) so as to pass tenancy protection to a surviving same-sex partner, would have been impossible. Ditto the Belmarsh ruling, with its HRA declaration of incompatibility in favour of terror suspects detained indefinitely with neither charge nor trial.
It will be sold to some voters as curtailing the rights of foreigners and criminals and to the press as free speech trumping privacy. To hell with Windrush apologies or solidarity with even Ukrainian refugees if rights are only for citizens, not humans. To hell with positive obligations on the police to protect victims of crime. This government finds such rights too expansive and constraining on the state.
Johnson may be no Machiavelli, but his so-called bill of rights is a princely deception that all decent democrats must expose.