24 June 2022

Dominic Raab has thrown down the gauntlet to activist judges

By Andrew Tettenborn

The idea of leaving the European Convention on Human Rights was once anathema. It is slowly becoming thinkable and even mainstream. Plenty of respectable countries are not members of any similar regional human rights organisation: think Canada, Australia and New Zealand. In the longterm, I doubt whether Britain’s democracy is consistent with continued membership of a human rights club controlled by an unelected activist progressive judiciary with a habit of encroaching ever further on matters of social policy that one might have thought should be up to voters.

However, this is a drastic step, and we are wise, for the moment, to regard it as a last resort. For the foreseeable future we remain members of the ECHR, and we might as well make the best of it. This is the message behind Dominic Raab’s Bill of Rights unveiled on Wednesday as a replacement for the Human Rights Act. Drafted in technical and sometimes opaque terms, its aims are nevertheless clear: to limit the effect of the ECHR in our domestic law as far as we can, and avoid having to take the nuclear option.

Partly, the Bill as announced entrenches wholesome existing practice by our own courts: for example, demanding that they must pay particular regard to the fact that our elected parliament has approved measures alleged to infringe human rights, and should avoid being plus européen que les européens by interpreting particular ECHR rights even more expansively than Strasbourg itself has done.

But there are also some very important important new provisions. Most high-profile is a provision aimed at avoiding a repetition of the Rwanda debacle earlier this month, when a single unnamed ECHR judge ordered the operation stopped, not because he (or she) thought human rights were being infringed, but merely as a precautionary measure pending a final decision. On the sensible basis that ring-holding measures like this belong in national courts and not with international tribunals who might want to second-guess them, for the future authorities are assured that they may, and our courts told that they must, ignore such interim recommendations.

There are others, too. Significantly, our courts are told that where free speech comes into conflict with other rights such as privacy, the former must be given ‘great weight’. This is a direct response to the tendency of Strasbourg, which not only has interfered extensively in the case of clashes between free speech and the Euro-right to privacy, but has tended to favour the latter. Again, the Bill explicitly prevents our courts from hearing human rights challenges to acts done by our forces abroad, reflecting the wording of the ECHR which only requires states to respect the human rights of those within their jurisdiction. Deportations are not to be held non-Strasbourg-compliant on the basis that they impinge on family life unless the harm caused is extreme. Human rights proceedings will not be able to be brought in the courts without permission, which is to be refused if the person bringing them fails to show that the infringement, if any, causes him significant harm. And the right of the courts to re-write legislation to make it Convention-compatible, currently contained in s.3 of the Human Rights Act, goes. Judges who think legislation incompatible will now have no choice but to make an open declaration to that effect. The object here is to prevent a gradual osmotic entry of the Convention into our law by the watering-down of existing legislation. More generally, there is a provision assuring our courts that they have the last word on the interpretation of the Convention in the UK, and that they are to pay particular regard to its words (and by implication less to the exegesis placed on them by Strasbourg judges).

At first sight this might all seem like a dry-as-dust exercise in legalism. But do not be deceived. There are two very important political points being made here.

One taps into a growing feeling that the Human Rights Convention, having started life as a very limited document of very little significance to most of our law, has now been expanded and distorted almost into a sort of European constitutional bill of rights, with tentacles expanding into great swaths of our social policy – think privacy and free speech, positive duties to deal with perceived threats to life and private misconduct, the law of marriage, or abortion. The feeling is that the acceptance that human rights must trump democracy – which in really extreme cases they must – has been somewhat abused by a Strasbourg court. We now have a situation where human rights activists are using the Convention in order to impose their views on European states in respect of matters best left to electorates. The new Bill aims discreetly to turn aside this exponential expansion of the realm of human rights, and at least in the UK context to prevent these tendencies going further.

The second point is less obvious, and possibly a bit less subtle. A number of the provisions in the Bill of Rights are (one suspects intentionally) provocative. It is a racing certainty that if enacted they will give rise to applications by individuals to Strasbourg: the specific privileging of free speech, the rules on deportations and the wholesale exclusion of liability in respect of military operations abroad are three instances where there is respectable contrary authority in Strasbourg. Here the court is being given an awkward choice. It can be intransigent and say these provisions must be changed: human rights activists will encourage it to do just that. Alternatively, however, it can endeavour to reach some intellectual accommodation with them (for example, by emphasising its preparedness to give national courts a wide degree of tolerance – known in Strasbourg-speak as a ‘margin of appreciation’ – except in the clearest of cases). The Court, for all its professions that it merely applies the law without fear or favour, is known to have sensitive political antennae.  Dominic Raab knows this perfectly well, and has thrown down the gauntlet to it. If it is prepared to take a soft line with the UK, the UK may well stay committed to the ECHR. If it does not, however, it must realise that pressure will grow for the UK to leave its ambit entirely (which it can do on giving six months’ notice).

Indeed, when it comes to the the reaction to this legislation, the response from the progressive establishment is perhaps of secondary importance. We know what it will be: the great and the good will oppose the measure tooth and nail, and the House of Lords (now increasingly a rest-home for that same great and good) will insert every spanner it possibly can into its works when considering it.

But what really matters, and is rather less clear, is what Strasbourg will do. It may play its cards cannily, cut the UK some slack, and keep its jurisdiction. Or it may play hardball and risk a UK exit. Members of the Court, it’s now over to you. The decision lies in your hands.

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Andrew Tettenborn is Professor of Law at the University of Swansea. He specialises in private, commercial and maritime law.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.