We have been promised a reform of the Human Rights Act for the last eleven years. It has been in Conservative Manifestos – now it is in a conference speech, will it actually be done?
Most interestingly is the timing: the new Lord Chancellor and Secretary of State for Justice is Dominic Raab, a lawyer who has written two books on the need for reform of the area. Now his text may start to find its way towards the statute book.
There are two particular problem with the Human Rights Act: one in the legal realm and one deeply political. I will look at the legal one: the deep political danger is for another time.
Each of the rights set out in the Convention européenne des droits de l’homme is one which is respected by British common law, so one would think there should be no issue with any of it. The common question from supporters of the Act is a sensible one: ‘which of those rights would you forego’?
The answer? Not one; but that is not the problem. The Convention rights are in briefest summary, the right to life; freedom from torture or servitude; liberty and security; fair trials; against retroactive laws; privacy; freedom of conscience and religion; free expression; free association; marriage between a man and a woman; the right to an effective remedy etc.
No Conservative would argue with these. One would argue though with the activist interpretation which has been put on some, going far beyond the words, and some interpretations which plainly disregard the words. A second element is the way that it disfigures the culture of law enforcement.
I will leave it to petty editorials in the Daily Mail to list examples of the Act going wrong. It is meant to defend the noble oppressed struggling for liberty; in a land which has freedom as the default setting, it is a remedy of last resort of the scoundrel. The events editorialised to draw the reader’s outrage may be nothing to do with the words of the convention nor the way it has been interpreted judicially, but the way the police or public servants defer to what it might be – an armed criminal with hostages demanding food as a human right and other such things, and the police complying in fear though there is no need.
However, there are genuinely outrageous judicial decisions, arising from the judges of the Convention’s own court, in Straßburg. Their fault is the decision, since 1978, that the Convention is a ‘living instrument’, not meaning what it actually said as intended in 1950, but meaning whatever the judges want it to mean according to the spirit of the times, or their idea of what the spirit of the times should be.
The Convention so read is a jelly. To call it any form of law is to insult the very concept of law. To set British judges to determine such an insubstantial mass is an insult to their vocation: European judges may have different standards.
If the Convention is a ‘living instrument’ it is not law, and its administrators are no judges.
There is a long history of discontent with the European Court of Human Rights. In the 1970s and 1980s the Strasbourg court handed out a string of judgments against Britain that seemed political; mainly judgments condemning actions taken against IRA terrorists. (Such judgments could only be made in an ivory tower, not by those who had seen their towns shattered by a bombing campaign, not by who wake in sweat in the early hours waiting for a knock and a gunshot.) More recently the discontent is in more personal matters. Wild judgments are , such as the one of a few years ago demanding that prisoners have an equal vote with honest men, is nowhere in the relevant Protocol to the Convention, but is determined by judicial sleight of hand. Other judgments look to force liberal preconceptions by a ratchet effect.
As improper are the cases that clear permit states to trample on freedom by allowing the action under the heading that it may be “necessary in a democratic society”. That is a phrase that can drive a coach and four through any right with that proviso. Enactments to silence dissent as ‘hate speech’ are becoming commonplace in Europe. In America such a law would be struck down at once by their Supreme Court, but in Straßburg it is more likely to be lauded as a necessity.
How long the European Court of Human Rights will continue as a liberal stronghold is hard to tell, as more conservative-minded judges are being appointed in Eastern Europe. The norms of Austria, Hungary and Poland are not those of Belgium or France.
If there is a pretence that the Court is a court and that the Convention is to be treated there as law, the political bent of the judges should be irrelevant. It is relevant though, for the Convention is like no law the British tradition could understand.
Reform then on these shores need not tackle the wording of the enumerated rights in the Convention itself as written in 1950, or its Protocols 9to the extent they are accepted. It would nail the jelly to the table, and read the rights as they are written.
In Dominic Raab’s book “The Assault on Liberty“, he makes the case for a ‘British Bill of Rights’ that actually resembles law. The timing of the book is important: it was written when he sat in Opposition, in the Blair period. It was not a demand for Parliament and Whitehall to be loosened from constraint, but a plea to impose more, better restraint upon the overuse of power. It was Mr Blair who pushed the Human Rights Act though Parliament and he declared himself thus a champion of liberty, but his ministry saw the greatest abridgment of personal freedom since, well, since the previous Labour government. Mr Raab’s called for liberty; and now he is in charge.
Reform is possible, but the Convention on its own may be impossible to save. Read straight as it was written is a necessary start: even read straight though the Convention is wobbly: that phrase “necessary in a democratic society” is incapable of definition except politically.
Rights restraining subsidiary legislation can be written in. The tendency since Blair’s time is for freedom to be curtailed and government power ever increased under the fig-leaf of the Act (which is a separate article). A restraint on delegated power is therefore needed. This may be Mr Raab’s ‘British Bill of Rights’, and it would be enforceable with judicial review.
The fuzzy political boundary is still there though and judges should not be pushed into those areas in which politicians must be made to accept responsibility. There may be a case therefore to tear the judicial element out. We would not have a British version of the Strasbourg court, but perhaps a quasi-judicial figure as a “Superintendent of Conventional Rights”, able to opine, to report and to chide.
- By Dominic Raab:
- The Rule of Law by Tom Bingham (former senior Lord of Appeal)
- Trials of the State: Law and the Decline of Politics by Jonathan Sumption (former Justice of the Supreme Court)
- The Secret Barrister: Stories of the Law and How It’s Broken
- Montesquieu: The Spirit of the Laws
- Constitutional & Administrative Law by Neil Parpworth
- De Cive by Thomas Hobbes
- Leviathan by Thomas Hobbes
- Behemoth: The History of the Causes of the Civil Wars of England, and the Councils and Artifices by Which They Were Carried on from the Year 1640 to the Year 1660 by Thomas Hobbes
- Thomas Hobbes – Behemoth (Clarendon edition)
- The Prince by Niccolo Machiavelli
- The Madness of Crowds: Gender, Race and Identity by Douglas Murray