finance

Warning: Britain’s new bill of rights is a cynical power grab


The writer is a QC and Labour peer

This government has already shown that it does not have much time for the law. Now it’s launching a new British bill of rights. But why? The bill keeps the same set of rights as those incorporated in the Human Rights Act and the UK will remain a signatory to the European Convention on Human Rights.

Here are a few ideas. We know from the wrangling over Brexit that ministers loathe transnational courts. And they have consistently shown their contempt for rules, whether on parliamentary conduct, national statutes or international law. They can impose Covid regulations one minute and breach them the next. They see the UK’s name on the UN’s Genocide Convention or the Refugee Convention and ignore it — as with the Rwanda deal, outsourcing the duty to provide sanctuary for those fleeing persecution. They sign a formal Brexit treaty then suggest unilaterally dismantling it.

They make strong statements about eradicating bullying from parliament and, when a cabinet colleague is found to have been a chronic bully, it carries no consequences. Rules exist to prevent profiteering from being a parliamentarian and, when a loyalist is found to have contravened them, there are brazen efforts to rewrite them. The prime minister breaks the law and then waters down the ministerial code.

It adds up to a concerted dismissal of constraint. At any other time, there would be uproar. Laws are now clearly for the little people, and this bill is another means of restraining judicial discretion and judicial oversight of government — fundamental to accountability in a democratic state.

Any suggestion that this bill is innocuous or bolsters rights is misleading; curtailing judicial review means that ordinary people will have serious difficulty challenging government policy where it affects their lives. A sifting procedure will weed out claims deemed unworthy: this will inevitably prevent significant legal issues ever seeing the light of day. Decision-making by public bodies that undermines our rights should not be above challenge but this bill will make inroads into the powers of domestic courts to intervene. It is through test cases that the law develops.

However, at the heart of this assault is the division between lawyers who believe in the “living instrument doctrine” — that law has to live and breathe through generous interpretations of rights — and those who cling to the original meaning of a text. The latter comes from the US Supreme Court Justice Antonin Scalia school of lawyering that insists upon what the drafters of the constitution or Founding Fathers had in mind, taking no account of changing norms and culture. It maroons society in a romance with the past.

The current Human Rights Act requires our courts to interpret legislation compatibly with the European Convention of Human Rights, “so far as is possible”, but the new bill scraps the obligation. The HRA also requires UK courts to “take account” of the jurisprudence of the European Court of Human Rights. This bill removes the requirement; it wants the political ability to disregard final judgments of the Strasbourg court and its precedents. This will put us in the company of Hungary’s premier Viktor Orbán, an outrider when it comes to the rule of law.

The bill is cloaked in spin: the UK will “take back control” from those terrible foreign judges. But ministers have our own judges in their sights too. The decisions in Gina Miller’s two cases — on the need for parliamentary consent on leaving the EU and on the legality of proroguing parliament — have created a dark rage among many Conservatives. They fail to see that the cases were not about Brexit but about parliamentary oversight and our constitution.

The new bill asserts that the UK Supreme Court will be the ultimate judicial authority when it comes to interpreting European Convention rights. I have news for ministers: treaty obligations are binding. On these matters the court in Strasbourg is the ultimate arbiter. Unless, yet again, the government is prepared to flout the law.

The drafters of the convention — in fact, British conservative lawyers — bound us to an agreed set of values. They believed that national legal systems sometimes need outside eyes to determine when they have erred or even fallen from grace — such as when we interned people in Northern Ireland and used cruel and inhumane interrogation practices.

The true objective of this bill is not to restore parliamentary sovereignty. Its purpose is to consolidate executive power and reduce scrutiny. It will have a chilling effect on judicial independence and the ability of judges to safeguard our rights, whether in everyday circumstances or in the extreme situations that we hope never to encounter. And it will chip away another piece of the mortar that holds together the rules-based order Britain helped create after the second world war.



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