Let them eat cake

Rights bill hard to swallow

The bill of rights bill is an example of Boris Johnson’s “cakeist” philosophy, the UK’s leading academic populariser of constitutional law says in a blog published today.

But Mark Elliott, professor of public law and chair of the faculty of law at the University of Cambridge, says the prime minister and his deputy Dominic Raab cannot have their cake and eat it.

Far from expanding human rights protection, as the government claims, its bill significantly diminishes it:

If, as is likely, this results in more applications to (and UK losses in) the Strasbourg court, the government will then face a stark choice between accepting the court’s judgments — thereby exploding the myth that the bill magically enabled the UK to loosen its international obligations via domestic legislation — or defying them and finding itself in breach of international law. That is the hard legal reality, and no amount of political bluster by the justice secretary about “strengthen[ing] traditional UK rights’” or preventing the Supreme Court’s “subordinat[ion] to Strasbourg” will change that.

Elliott cannot be dismissed by ministers as a lefty lawyer or a political opponent of the government. With great speed and forensic skill, he has analysed the bill and exposed its failings. He says it

will make it more difficult to bring successful domestic human rights claims, particularly for those claimants who are considered “undeserving” (clause 6, for instance, tilts the scales against prisoners seeking to bring certain human rights claims, while clause 17 is a ham-fisted attempt to give effect to the political mantra that “rights come with responsibilities”).

This, in turn, will make successful applications to the Strasbourg court more likely — at which point adverse judgments will presumably be the “fault” of the “foreign judges”.

The legal problem, however, is that the bill rests on a false premise — namely, that it is possible to legislate domestically in order somehow to manipulate or magic away treaty obligations that are binding upon the UK as a matter of international law…

Even if individuals are less able to bring human rights claims in domestic courts, and even if those courts are less able to hold that convention rights have been breached, the legal reality — that the UK is bound by the European Convention on Human Rights for as long as it remains a state party — will not change as a result of the bill.

Once you have read Elliott’s blog, there is really little left to say. He does not trouble himself with the bill’s most bizarre provisions — clause 9, for example, which tries to tell Strasbourg that we in the UK regard jury trial as fair — or its extravagant language, such as “exceptional and compelling reasons” and “a breach of the right to a fair trial so fundamental as to amount to a nullification of that right”. Instead, he warns us that the government is trying to take powers from our own courts:

We now have a bill that seeks to diminish the domestic legal impact of the transnational human rights system of which the UK has chosen — and agreed in international law — to be a part, and which seeks at the same time to make significant inroads into the powers of domestic courts to uphold fundamental rights.

All of this is infused with the notion of “taking back control” from those “foreign” judges in particular, but also courts and lawyers more generally, who are viewed as an inconvenience at best, an illegitimate interference at worst.

The government claims to be doing this in the name of — and the bill explicitly references — “parliamentary democracy”. But it is becoming abundantly clear that the true objective underpinning this bill (and the government’s wider project) concerns not the so-called restoration of parliamentary sovereignty, or the strengthening of democracy, but the entrenchment of a form of executive hegemony — one that smacks of authoritarian resistance to scrutiny and is antithetical to the best traditions of the British constitution.

Despite the occasional long word that some readers may have to look up, I strongly recommend you read Elliott’s blog in full.