16 December 2021

The Human Rights Act is dire for democracy


Marcus Aurelius was emperor during the golden age of Rome, with all the might, learning and general Hollywoodness that entailed. His realm was vast, his legions many, his diktats supreme. Yet burrow into book nine of his Meditations, and you come across this particular aperçu:

‘Don’t hope for Plato’s utopian republic, but be content with the smallest step forward, and regard even that result as no mean achievement’

It seems that even the greatest leader of the ancient of world had to contend with the Capitoline Whitehall’s version of ‘the Blob’.

Perhaps this discovery ought to temper our disappointment at the Government’s latest moves on reform of the Human Rights Act 1998 (HRA 98). This week, the Ministry of Justice announced a consultation. The weighty document rather usefully sets out some of the basics around how HRA 98 has failed, how it could use bolstering with a new Bill of Rights tailored to UK traditions and Common Law history, and identifying specific areas that have been most open to rolling abuse.

It is extremely good news that these flaws in our legal system are being looked at. It is particularly welcome that the two lead ministers are the robust Brexiteers Suella Braverman and Dominic Raab, who a decade ago pushed this very issue onto the Westminster agenda. The problem is that their efforts are already hamstrung before they start.

There is no doubt that human rights law is broken. Perverse legal decisions are made on the back of defence lawyers citing spurious protections such as ‘the right to a family life’, even where the subjects in question have clearly been breaking the law. Many lawyers recognise this, but few are prepared to let politicians try to fix the problem. Laws are supposed to be crafted by the elected representatives of the people, to be amended or repealed when they don’t work. Yet the legal profession, with its elevated view of its role, would prefer laws to evolve, subject to the enlightened guiding hand of lawyers and judges, and far from the dangerous meddling of unwigged interlopers.

This might explain the professional push back against even attempts at reform, but it is perverse when one considers how HRA privileges the poor decisions of judges in Strasbourg – who have moved on from their original mandate relating to life, freedom and fleeing annihilation, to now pronounce third and fourth generation interpretations of what constitutes a societal ‘right’.

By incorporating the European Convention of Human Rights into UK law, the HRA essentially nationalises the decisions of the European Court of Human Rights (ECHR) by forcing judges to pre-empt what their counterparts in Strasbourg might have to say to avoid challenge.

I explored the problems this generated a decade ago in a major report. I’m still waiting for someone to come up with better estimates or rebut the central argument – namely that bad rulings set irrational precedent, generating excessive cost, and overruling more pragmatic local judgements delivered under English common law. The system then cements the decision, preventing democratic attempts to correct it.

Some of the most egregious examples of this are when foreign criminals have successfully appealed against deportation on ‘human rights’ grounds. But ECHR and ECHR-based rulings cover a raft of policy areas across departments. It’s becoming the water wings of wokery – and I recommend you dig out a few CVs of these Olympian judges, with their backgrounds in right-on legal activism, to see why. 

Just plugging a few holes in the HRA98 colander, as the Government is intending to do, won’t work. Appeals will still take place in Strasbourg. Ultimately then, you either run a policy of ignoring dire Strasbourg rulings, or quitting the ECHR altogether. Anything less is buying time. 

Still, making even a doomed attempt at reform brings with it one advantage. When the soldering gives way, the leaks will become all the more evident, and the need for a complete rebuild of the human rights legal framework will be clear. The deceit will get caught out – just as the inherent contradictions within the EU’s democratic system ultimately were, whenever laws scripted in Brussels needed to be fixed and it turned out Parliament didn’t have that power.

Ultimately, ceding decision-making powers over fundamental matters of human rights to a supra-national court is dire for public faith in democracy. Extremism will thrive whenever a constituent is told by their representative with an indifferent shrug of their shoulders that ‘nothing can be done’ on a matter of concern, such as illegal immigration or the gender rights war.

Remember too that after Marcus Aurelius came the tyranny of Commodus.

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Dr Lee Rotherham is Director of The Red Cell, a Brexit think tank.

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