‘Prepare for a full-throated attack on human rights’

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‘Prepare for a full-throated attack on human rights’

Union Jack. Pic by Dave King (Flickr, creative comms)

Speaking earlier this week at an event hosted by the Institute for Government, Geoffrey Cox QC, who was then still the Attorney-General, suggested that while he had concerns about the ‘judicialisation’ of politics, there was no need for a ‘headlong rush into impetuous reform’.  Clearly Boris Johnson and Dominic Cummings take a different view, with Cox defenestrated yesterday afternoon in favour of Suella Braverman, the former chair of the European Research Group and an MP with deeply questionable views on the judiciary and human rights. 

While Cox may have caveated his comments, they were still loaded with scepticism towards the judiciary, with the then Attorney-General arguing that the courts had ‘gone too far’ and now required some ‘amelioration’ of their role, possibly through Parliament becoming involved in the judicial appointments process.  The fact that Cox has been dismissed while holding views like this, especially given his general fidelity to the Johnson government and the Brexit project, is an indication that the course of action being plotted by the government is so extreme that they expect he would have been forced to resign.  They have pre-empted this, and the inevitable headlines that it would have attracted, by elevating Suella Braverman, who will be a full and enthusiastic participant in any attempts to shackle judicial authority.  

Before her election to Parliament in 2015, Braverman practised as a barrister in areas that included judicial review and immigration law.  Despite this, she is deeply suspicious of the role of the judiciary,  arguing in a recent comment piece for Conservative Home that ‘Parliament must retrieve power ceded to another place – the courts’, with ‘prorogation and… Article 50… examples of a chronic and steady encroachment by the judges’.   This is a constitutionally illiterate interpretation of the two Miller cases, which actually emphasised the supremacy of Parliament over the executive, but it is an interpretation that cynically justifies Braverman’s desires for constitutional reform.  This is reform which would not, as she claims, see the restoration of parliamentary sovereignty, but the installation of executive hegemony.  

This attitude is, unsurprisingly, coupled with a critical view of human rights, and in particular, the European Convention on Human Rights (ECHR).  In a recent parliamentary debate on the Streatham terror attack, Braverman said that the ‘strained’ interpretation of human rights threatened national security, while in 2015 she argued, in a similar vein, that Article 8, which protects the right to privacy and a family life, had been interpreted in a way which was ‘laughable, pitiful… and unjust’. Alongside this she has called for a ‘Universal Declaration of Responsibilities and Duties’ to be ‘read in tandem’ with the UN’s declaration on human rights.  

This focus on responsibility is redolent of individuals who take a transactional view of rights, viewing them, wrongly, as mere privileges that can be won and lost.  This philosophy, which degrades the inherence and universality of human rights, is pervasive in Johnson’s government. So far, it has successfully rendered Shamima Begum stateless, while it is currently being used to deport ex-offenders – many brought here as children- without giving them the opportunity receive legal advice. It considers the fact that they have committed crimes to be sufficient to deprive them of their rights. That some of these offenders have been found guilty of offences that aren’t all that different to acts done by our prime minister, as Jeremy Corbyn has pointed out, makes the iniquity all the more glaring.

Braverman’s appointment means that we will see a full-throated attack on the Human Rights Act, alongside a resurgence of the idea that Britain should depart from the European Convention on Human Rights. The prospect of a ‘British Bill of Rights’ has already been mooted by Cox, who suggested yesterday that it should replace the ‘unloved’ Convention (unloved mostly thanks to the near-constant onslaught it has faced from the government and the press); Braverman has argued that the ‘catalyst for this proliferation [of judicial activism] was the Human Rights Act’, which has led to ‘inherently political decisions’ being ‘overturned by the courts’. 

Given that there are few obvious rights in the ECHR ripe for sacrifice, reform will either be a case of style over substance, rhetoric merely emphasising our distance from Europe, or more likely, a focus on judicial control over rights, particularly their interpretation.  Section 3 of the HRA, which obliges the courts to apply legislation in a way which upholds human rights ‘as far as it is possible’ has been been a potent tool in the hands of the judges, particularly in protecting the rights of minorities and unpopular groups such as criminals and ex-offenders. With British judges already unable to strike down laws, instead being only able to label them ‘incompatible’ with human rights, and limiting the degree to which they can interpret legislation in a way that upholds human rights is the only real route to curtailing their authority.  

Given how keen Braverman seems to be on responsibility, her elevation to the Cabinet is ironic.  This is a government that is allergic to responsibility, filled with MPs who have spent years blaming the EU for everything from fish sales to the planting of trees, and now, bereft of their scapegoat, are transferring blame to the courts.  Fortunately, the judiciary have proved more resilient – and more responsible – than the other branches of government, and the Supreme Court has for some time been quietly writing about the infusion of human rights into the common law.  If Johnson, aided and abetted by his new Attorney-General, is successful in repealing the HRA, his government might find that human rights are more deeply rooted than they realised – and that installing an elective dictatorship is easier said than done.