Dominic Raab has announced his plans to reform the Human Rights Act 1998 — not in a press release from the Ministry of Justice, still less in a consultation document, but in a short article for The Times.
I shall analyse Raab’s essay paragraph by paragraph:
It’s a story we’re all tired of hearing: a dangerous criminal frustrates deportation on human rights grounds. In one case, the criminal in question — a convicted drug dealer — claimed that his right to family life under Article 8 of the European Convention on Human Rights (ECHR) meant he shouldn’t be deported.
Which case is that?
This was a man who had been convicted of battery against his partner. He paid no maintenance towards his child. But, still, he claimed his right to family life to frustrate a deportation order. This is the kind of case that gives human rights a bad name — and undermines public trust.
You must mean AP (Trinidad and Tobago) v Home Secretary which was decided by the Court of Appeal more than 10 years ago under legislation that has since changed.
Why not cite a more recent claim, like AM (Somalia) v Home Secretary, decided in 2019? In that case, the Court of Appeal held that the impact on an appellant’s family life was not strong enough to outweigh the public interest in his deportation. “In general,” said the court, “only a claim which is very strong indeed… will succeed.”
It’s not a one-off. To give you a sense of the scale of this particular problem, as a result of the way the Human Rights Act (HRA) has promoted such expansive interpretations of Article 8, those claims make up about 70 per cent of all successful human rights challenges made by foreign national offenders against deportation orders.
But what proportion of those claims are successful?
The fault lies with the HRA — not the judges. And it’s just one illustration of why we need to restore some balance, and common sense to the system. So, today, I am setting out plans to overhaul the system, revise the HRA and replace it with a bill of rights.
Don’t assume that the legislation will be known as the Bill of Rights Act. It’s much more likely to become the Human Rights Act 2022.
The proposals, we will consult widely on, are designed to deliver four key reforms.
First, we want to strengthen the quintessentially UK rights, which are the cornerstone of our tradition of liberty and, I would say, our way of life. Freedom of speech is the liberty that guards all the others. Yet, a combination of court-innovated privacy law, licensed by the HRA, and the hyper-sensitivity of some in our society to opposing views, has incrementally and surreptitiously whittled away the scope for the rambunctious debate which is essential to our democracy. That is dangerous.
Rambunctious appears to be a US synonym for rumbustious, which meant meant both robust and boisterous.
As the great British thinker John Stuart Mill said: “He who knows only his side of the case knows little of that.” So, under our reforms, we plan to strengthen free speech from that insidious attrition, mindful of the need to preserve our ability to tackle today’s online threats — from terrorist radicalisation to the grooming of the vulnerable by sexual predators.
Because the human rights convention balances freedom of expression against respect for private and family life, that must mean less privacy.
Trial by jury is another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights. We should be proud of our history of liberty — and preserve a human rights framework that promotes it.
We weren’t expecting this. But what does it mean? Why do we need legislation to protect trial by jury?
And what are the Scots going to make of it? The Human Rights Act applies across the United Kingdom. For technical reasons, it applied to Scottish appeals before it applied to cases from other parts of the UK.
But Scotland has always had a unique system of criminal law. Juries have 15 members and a simple majority is all that’s needed for a conviction. Is Raab seriously proposing to interfere with that? If not, why does he say trial by jury is “applied variably around the UK”?
Second, we’ll draw a clearer demarcation of the separation of powers between the courts and parliament. The calibre of our judges is globally renowned, and we should be confident in the UK’s tradition of rights, rather than importing a continental European model. So, we’ll end the duty on UK courts to take into account the case law of the Strasbourg court which has at various points been applied as a duty to slavishly follow Strasbourg. We’ll make crystal clear that the UK Supreme Court, not Strasbourg, has the ultimate authority to interpret the law in the UK.
That means amending or repealing section 2 of the Human Rights Act, as I predicted yesterday and in previous pieces.
Third, we plan to re-assert democratic control over the expansion of human rights — which is a matter for elected law-makers in parliament. This would end the practice of the courts, required by section 3 of the HRA, to alter legislation which is squarely parliament’s job. Those who make the law must be democratically accountable to the people.
Again, this was expected. I said yesterday that some judges would be quite relieved by this. Lord Neuberger, former president of the UK Supreme Court, noted that “judges are positively encouraged to rewrite statutes to comply with the convention and therefore to act as legislators rather than interpreters”.
Next, following our reforms to the ECHR and Strasbourg framework — under the 2012 Brighton Declaration — we can assert a greater “margin of appreciation” in applying ECHR rights at home. We plan to avail ourselves of that latitude, and engage in meaningful dialogue with Strasbourg by enacting a democratic shield. It will affirm, what should never have been put in doubt, that parliament has the last word on the law of the land in this country.
“Margin of appreciation” is a technical term — a mistranslation of a French expression — referring to the room for manoeuvre that that human rights court grants to states. Raab realises that more cases will be taken to Strasbourg by claimants who can no longer enforce their convention rights in the UK. But he hopes the UK will be able to defend those cases successfully at the human rights court.
Fourth, we will re-balance the system by making clearer that rights come with responsibilities. We propose a “permission stage” for human rights claims, so applicants have to demonstrate that they have suffered a “significant disadvantage” before proceeding to sift out spurious and unmeritorious claims earlier.
That will certainly lead to more cases going to Strasbourg.
We’ll reform remedies, so the courts can take greater account of the behaviour of claimants, and the wider public interest, before doling out compensation to those who have done wrong.
It’s not clear why human rights claims should be treated differently from other damages cases in the UK courts.
Claimants who win their cases at the human rights court receive damages that are usually modest and sometimes symbolic. But most claimants are not in it for the money.
We can achieve all these things whilst staying a party to the ECHR. A bill of rights won’t give us a magic wand to solve all our problems, but nor would pulling out of the convention.
That’s not what some of Raab’s supporters wanted to hear.
It will reinforce the UK’s traditions of freedom, curb abuses of our human rights laws, allow us to deport more serious criminals, restore democratic control over the expansion of novel rights by the back door — and deliver a healthy dose of common sense to the system.
It will also lead to more defeats for the UK at the human rights court. Under the convention, states must “abide by the final judgment of the court in any case to which they are parties”. So the government will have to put things right in the end.
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Better still, as the festive season is upon us: