There are two ways ministers can avoid falling prey to human rights law. One is to rule with respect for universal human rights, as codified after World War II in response to indescribable atrocities. The second way is to redefine these rights, making their interpretation subordinate to political expediency. Boris Johnson’s government has chosen the other path.
The method is a new one declaration of rights, which replaces the 1998 Human Rights Act, which incorporated the 1953 European Convention on Human Rights into British law. The amendment is not a withdrawal from the European Court of Human Rights (ECHR) in Strasbourg, which rules under the Convention, but it is a dilution of the protections it represents.
ONE the purpose of the bill is to give politicians more influence in the way the courts interpret human rights law. It is expressed as an act to counteract the spread of “trivial” and “false” claims, which “waste the judges ‘time and taxpayers’ money”. A “permit phase” will be introduced where the courts can assess the justification of a claim – whether there is a “significant disadvantage” – before it can proceed.
The practical effect of these changes will depend on what is considered trivial and how much damage is considered significant, which in practice means that the principle of the underlying rights will be subject to a political prejudice against the applicant. Dominic Raab, the Secretary of Justice, sees himself “injecting a common 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 that is happy to use the statute for campaign purposes is not a reliable basis for impartial justice.
Explicating the bending of legal principles to political preference, Mr Raab acknowledges that his bill is tantamount to a curtailment of rights – an overtly regressive step and an erosion of freedom, pursued as part of a protracted vendetta against The Human Rights Act. Many Conservative MPs would go even further and completely reject the ECHR.
The Strasbourg court has long been viewed (and despised) in right-wing Tory circles as an obstacle to expelling foreign-born criminals from Britain. With that scenario in mind, the Department of Justice has made it clear that the new bill will allow for changes in the threshold for anyone who opposes deportation because of the right to a family life. The test would be “overwhelming or unavoidable harm” to children – a formula that contains the eerie realization that an unspecified but insignificant amount of harm to children is quite acceptable in the eyes of the government.
The latest cause of ECHR irritation for ministers was the reason for an expulsion flights to Rwanda last week. The plaintiffs in that case were not criminals but asylum seekers, although the Home Office deliberately confused the two by closing legal roads to a sanctuary. The new bill will claim the capacity of British courts to disregard such decisions in the future. That estimate already exists. The purpose of strengthening it is to raise awareness of national sovereignty and Europe – a brand extension of the Brexit spirit to condemn an institution that is not even part of the EU. This does not mean that Mr Raab’s bill is purely symbolic. The dilution of fundamental rights and their subordination under ministerial opinions is a significant constitutional change. It is also a step backwards for democracy.