Conservatives plan to overhaul the Human Rights Act
RUSSIANS OLIGARCHS make good villains. They are rich, powerful and foreign, and their money is sometimes ill-gotten and almost always in your face. After Russia invaded Ukraine, deputys called for swift sanctions against those of them who were close to Vladimir Putin. When this took longer than in other European countries, the Conservative government resorted to blaming another favorite bogeyman: human rights legislation.
Clever lawyers delaying sanctions provided the perfect ammunition for a government that was already determined to overhaul Britain’s human rights regime. The government has proposed to abolish the Human Rights Act (HRA) and replacing it with a bill of rights. Britain would remain a member of the European Convention on Human Rights, which the Act incorporates into British law. But judges would be encouraged to settle cases without referring to the convention, in the hope that this would make it easier to deport people, for example, or stop forced marriages. For a taste of how it will work, compare it to Britain’s most recent attempt to alter its relationship with another pan-European institution: the European Union (EU).
Just as conservative deputys spent decades campaigning to leave the EUthey also spent years complaining about the HRA. Binning has been a conservative policy since 2006. In both cases, the tabloids have inflamed sentiment. Stories of Brussels bureaucrats interfering in anecdotes such as the bend in the bananas were common. Likewise, when the HRA which came into force in 2000, were accounts of foreign criminals escaping deportation. Pure and simple fabrications were rare. Most of the stories contained a kernel of truth, which made them harder to dismiss. Human rights allow people who have done bad things to avoid deportation if it ruined the lives of their children. And of course, the world’s largest single market has rules about selling the world’s second most popular fruit.
In both cases, the benefits have been and are being ignored. There was little credence to be gained in conservative circles by saying nice things about the EU. the HRA, for its part, had the misfortune to come into force when a Labor government was enthusiastically going through a phase of illiberalism, pledging to detain terrorist suspects without charge for months. It quickly acquired the reputation of being a terrorist charter. If the timing had been different, his image might have been too. It was thanks to the HRA that the families of 96 football fans who died in the Hillsborough disaster in 1989 finally got a full inquest more than two decades later. He concluded that the deaths previously deemed accidental were in fact unlawful.
Instead the HRAas the EU, has become a scapegoat. Government sources were quick to blame the ‘human rights law’ for the slowness to impose sanctions on the oligarchs; they did not explain how the governments EU had evolved more rapidly, despite being covered by the same convention. A lack of preparation for long overdue measures was a more likely culprit. The ministers were hiding behind EU law in the same way. Inconvenient requests, such as the removal of sales tax from heating bills, would be denied citing EU law. Now those excuses are gone.
The reviews of the HRA have a point. So much nonsense is written about human rights law that real concerns are dismissed. At the time of HRA, newspapers – from tabloids to broadsheets – feared it would create a privacy law, for the entirely selfish reason that it would make it harder to eavesdrop on people’s lives. They were right. A thousand years of common law had produced no such law in Britain; only after the introduction of HRA have we evolved in successive court cases. Depending on your perspective, this is either a long overdue correction of a shameful omission, or a lamentable invasion by an alien principle. Either way, it’s a huge change.
In either case, however, the fear of a change to the status quo is exaggerated. Brexit has sometimes been absurdly presented as the collapse of the Western alliance. Likewise, the convention is portrayed as a bulwark between “Weimar Britain” and the rise of tyranny. This rings hollow, since Turkey, a borderline autocracy, and Russia, whose government murders its citizens and invades its neighbors, have signed on. As Jonathan Sumption, a former Supreme Court justice, argued, convention is most influential where it’s least needed and ignored where it’s most needed.
The right question, in both cases, is whether the change is worth it, or just too much trouble for too little potential gain. Britain may have left the EU in 2020. But the Conservatives have barely used their hard-won regulatory freedom. The situation with human rights reform is similar, as politicians struggle to say what Britain would do under a different human rights regime that it cannot do now. In briefings, political advisers outline proposals reminiscent of comic book villain plots to deal with people crossing the English Channel in small boats, from their detention in centers in Albania to the deployment of wave machines. It is not only illegality that prevents such projects; impracticality and immorality also.
Human rights, harmed
As with Brexit, plans to overhaul the HRA are a displacement activity. Why bother to reduce a backlog of 60,000 court cases awaiting trial, or refurbish Britain’s overcrowded and unsanitary prisons, when a minister can wave a new Bill of Rights? Similarly, Brexit has diverted attention from Britain’s real problems, which include slow growth and gaping inequalities between London and the regions, and were not caused by the EU.
If the government continues on this path, everyone will be unhappy. Human rights activists and lawyers will be harmed that a functioning system has been torn apart for no good reason. In the meantime, those who reject the very idea of such a convention will be unhappy with anything short of abolition. The final similarity between replacing the HRA and leaving the EU will be a result that disappoints both supporters and opponents. ■
Read more from Bagehot, our columnist on British politics:
The Rise and Fall of Londongrad (March 5)
2022 NHS crisis will hurt Tories (February 26)
The Shrinking State (February 19)
This article appeared in the Great Britain section of the print edition under the headline ‘Brexit: the aftermath’