September 28 2023

‘We will drift further and further from our international allies and friends.’  

‘We will drift further and further from our international allies and friends.’  

Legislating to permit harm to children is a peculiar approach for any government to take.  Children are vulnerable, dependent on their parents, their family, and if need be, the state for their safety and security.  And even parents with criminal convictions still have the potential to be good parents.  Indeed, most research suggests that boys with a father in their lives – and it is mostly men who are convicted – are less likely to turn to crime than those who do not. 

Despite this, in its new Bill of Rights bill put forward yesterday (and described by Amnesty UK as ‘a giant leap backwards for the rights of ordinary people‘), the government has included a clause targeting such parents and their children.  It orders that any foreign parent who is convicted of a criminal offence to be deported unless doing so will cause ‘overwhelming and significant harm’ to their child.  Taken at face value, this is an astonishing clause to put down in law.  It expressly permits harm being done to children. And if courts interpret it as the government intends, it will condemn hundreds of children to fatherless lives, violating their rights – and the rights of their fathers in the process.

Such condemnation is made worse by the fact that the need for such a clause is entirely of the UK government’s own making.  While fair criticisms can be made of how the courts have, on occasion, approached the question of a ‘right to a family life’, for the most part, they have a sensible approach to deportation, as well as to human rights more generally.   When presented with cases where they must decided between enforcing a deportation order or upholding a family’s human rights, judges examine the facts, deciding if there is a genuine family life subsisting, or if it is a convenient ruse to stay in the UK. But because successive governments have spent years spinning the line that interfering judges, whether at home or at Strasbourg, have been preventing deportations because of cats or spurious family connections, people believe that they are, and expect the government to do something about it.  And so we have this new would-be bill of rights.

Domestically, the government is entirely within its power to draft a new bill of rights – even if it only promised to ‘update’ human rights protections in its 2019 manifesto.  But domestic power is not all that matters, much though the government and some commentators may believe that it is.  The UK must also work and cooperate with its counterparts on the international plane, and agree to be bound by the promises it makes there. Here, the bill simply looks like another front in the government’s ongoing war against international law and the UK’s treaty obligations.

Under the current provisions of the Human Rights Act, parliament retains its freedom to legislate as it wishes.  However, the HRA places the courts under an obligation, through section 3 (s.3), to interpret any legislation in a way that makes it compatible with human rights ‘so far as possible’.  This has enabled the judiciary to critically engage with legislation – particularly in how the text translates to reality – ensuring they remain faithful to the main thrust of the legislation.  While Richard Ekins and others at the Judicial Power Project have frothed about s.3 letting the judiciary legislate through the backdoor, giving them unprecedented power, this apoplexy doesn’t match up to reality.  In research published in the UKCLA blog, lawyers at JUSTICE concluded that the courts have ‘not [been] radical’ and that they have been vigilant ‘not to undermine parliament’s intention’.  

Nonetheless, this government, never one to let reality get in the way of rhetoric, has done away with s.3 entirely.  In its place, the bill reiterates that the UK Supreme Court is the ‘ultimate judicial authority on [Convention] questions arising under domestic law’, and directs judicial attention toward the text of the  Convention right, rather than the text of the legislation.  By asking the courts to focus on the preparatory work and the text itself, the intention is presumably to head off modern interpretations of human rights, confining courts to what the drafters ‘intended’.  This approach, which bears some resemblance to the ‘originalist’ school of thought more commonly found in in America, is fraught with difficulty.  Among these difficulties is the fact that constitutional documents do not have one author or one perspective, representing instead a cacophony of views, coalesced into one heavily debated and heavily revised document. 

Originalism is at best a guessing game, and at worst, a selective interpretation of history based on what judges would like to decide.  But this does not mean that it has not been used to devastating effect in America.  Under this philosophy, the US Supreme Court is currently remaking America’s constitution in a right-wing image, as the impending reversal of Roe v Wade will show only too clearly.  It is unlikely that the proposed Bill of Rights will have anything close to this effect, with the bill retaining the constituent rights in the Convention, and doing nothing to counter the fact that the common law has already been heavily influenced by more modern interpretations of the right.  

Where the bill might have more domestic success is in how it affects the courts’ use of the proportionality test, and how it tries to order the courts to reorient their approach to specific rights.  The proportionality test requires judges to consider the balance struck between policy aims and human rights.  Any violation of a right must be proportionate to the aim pursued.  According to the bill, judges will be obliged to accept that simply by having legislated, any challenged act strikes an ‘appropriate balance’.  At first glance, this heavily checks the ability of the judiciary to scrutinise legislation.  But a closer reading shows that the legislation does not prevent judges from analysing whether any violation of rights is ‘necessary’, or from considering if the violation is ‘fair, just and reasonable’- two other aspects of the test.  Consequently, much may depend on how the Supreme Court chooses to engage with the meaning of this clause, and whether it is willing to interpret the proposed act in a way that holds parliament to account, or prefers just to empower the executive. 

Similarly, the bill is ambitious in how it reframes particular rights – most particularly, those that protect the most vulnerable and the groups most reviled by this government and its supporters (two categories that frequently go hand in hand).  On the question of deportation, the harm done to an individual in being deported must be ‘exceptional’, ‘overwhelming’, and ‘incapable of being mitigated’.  In much the same way, another section seeks to ensure that the military cannot be held accountable for human rights violations in the field, and also that the government cannot be held accountable for failing to adequately protect our soldiers- something that it will doubtless try to play down.  

The bill is bad, but not as bad as it could be – and it is likely to face significant opposition and numerous amendments, particularly in the House of Lords. (There is no little irony in the fact that the two bodies holding the government to account are the two of the least democratically accountable institutions in the country.)  But it has the potential to significantly check the protection of human rights domestically, particularly given the more deferential approach we have recently seen from the Supreme Court.  No longer will courts have the express authority to interpret legislation so as to render it compatible with human rights, and no longer will Strasbourg be the guiding force it has been.  Instead, the probable outcome will be many more declarations of incompatibility, and many more decisions where the European Court of Human Rights  finds that the UK has violated the ECHR – something that up until now, it has rarely done.  In short, we will still comply with domestic law, while on the international plane, we will drift further and further from our international allies and friends.