Do we go too far?
Other supporters of human rights accuse UK of ‘maximalist’ approach
The United Kingdom has been accused by other Council of Europe states of adopting a “maximalist” approach to human rights, the justice secretary disclosed yesterday.
Shabana Mahmood was answering questions from the House of Lords constitution committee, which is conducting an inquiry into the rule of law. Lord Beith wanted to know whether the government was preparing legislation on the interpretation of article 8 of the human rights convention, which protects private and family life.
“There is clearly an issue with the extent to which our jurisprudence on the interpretation of our obligations under article 8 is defeating what would be a migration policy that can command wide public confidence and fulfils our broader legal obligations as well,” she replied.
“If you talk to colleagues across Europe, there is a view that Britain may be more at the maximalist end of the spectrum when it comes to interpreting how we might comply with our international obligations,” Mahmood continued.
“You don’t have to be at the maximalist end to be in compliance.” Other states across the Council of Europe, which manages the treaty, drew the line differently.
“I think it’s perfectly fine for us to question whether we have drawn the line in the right place,” Mahmood added. Primary legislation, secondary legislation and guidance were all currently under consideration and home secretary would be giving a progress update later in the autumn.
Responding to a question from Lord Foulkes of Cumnock, the justice secretary recalled informal comments made to her by other political leaders at the Council of Europe:
There is a view — and it was surprising to me how widely held that view was — that we, the Brits, maybe go to the nth degree. For those who don’t necessarily want get into a big discussion about ECHR reform through the Council of Europe there was very much a sense that, you guys need to sort your domestic law out. You may be going a bit too far and not even the [human rights] court wants you to go that far…
There was a very widely held view, among lots of people I was engaging with, that the issue from their perspective was very much our domestic legislation — which is why I think this work on article 8 is particularly important.
Comment
The approach Mahmood encountered when she attended a meeting of the Council of Europe’s committee of ministers in June brings to mind the belief that UK officials used to “gold-plate” EU directives when transposing them into national law. In 2010, the then coalition government’s business department announced that it would put an end to the practice and do no more than was required.
This seems to be the approach being urged on the UK by other political leaders in Europe, who may be embarrassed by the UK’s assiduousness. Given the challenges facing the government’s asylum and immigration policy, you might wonder who would want to insist on keeping to the strict letter of the law.
The attorney general will be answering questions from the constitution committee next Wednesday.
Update 7 September: from today’s Sunday Times —
Sir Keir Starmer’s new cabinet is prepared to overhaul human rights laws to tackle immigration — even if it makes his MPs feel “queasy” — as it seeks to counter Reform UK and win voters’ trust.
The prime minister has appointed pragmatists, including Shabana Mahmood as home secretary and David Lammy as justice secretary, after Angela Rayner’s resignation on Friday. They are expected to take a tougher line on immigration, putting them on a collision course with Lord Hermer KC, the cautious attorney-general.
Hmm……And so, step forward, “Article-8 - lite”.
I find it fascinating when the narrative begins to shift, in times of political-or perhaps I mean partisan- difficulty, from the literal as well as in this case liberal interpretation of the law, conventions and whatever- viewed by so many to be unrealistic and unhelpful- to arguably a much looser and LESS liberal construction that, worryingly, administrations find soothing and even laudable.
Do we in our heart of hearts truly wish to embark on that route? Where might we then be getting to and, once again, might it shimmy towards a dilution of the rule of law towards a more “separation of the powers-lite” future?
Although we were original subscribers to the ECHR, it was the enthusiastic drafting of the HRA 1998 that set the scene for our current ‘problems’. I was a national trainer and the view was very much that we would show other less observant states how to fully embrace human rights.
It is the HRA that needs amending, if we want to dilute our duties. That, of course, does not require any involvement by other signatories.