WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
March 29 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

What’s really behind Boris Johnson’s review of the Human Rights Act 

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What’s really behind Boris Johnson’s review of the Human Rights Act 

Shamima Begum: Stripped of her UK citizenship (Credit: BBC)

Human rights are ultimately about what governments cannot do to their citizens.  This is why every government, regardless of its political stripe, nearly always eventually ends up stymied by them during its term in office. Provided rights are properly protected by the courts, they serve to erect an impassable barrier before the government, forcing it to either plot another, likely more arduous, route to its goal, or to abandon the goal entirely.  

Given this, any review of human rights legislation should be focused on how effectively the legislation is protecting individuals’ rights.  Is it properly constraining executive overreach, or is it a paper tiger, promising much but delivering little? 

Curiously, this does not appear to be the focus of the government’s Independent Review of the Human Rights Act, launched this week by Robert Buckland, the Lord Chancellor.  Instead, Number 10 seems more concerned with evaluating the ‘relationship between the UK’s domestic courts and the European Court of Human Rights’, as well as resolving the question of ‘whether domestic courts are being unduly drawn into areas of policy’, and, presumably, therefore trespassing upon the rightful territory of the executive and Parliament.   

For anyone who has paid the barest of attention to the behaviour of Johnson’s government, such a focus can come as little surprise.  This is a government that views human rights as a mere inconvenience, and the lawyers and judges who uphold them as enemies to be bludgeoned aside. Since the Conservatives won the general election in 2019, they have sought to strip Shamima Begum of her citizenship (foisting her on Bangladesh instead), have tried to prevent asylum seekers from claiming refuge in the UK, and have initiated a review into the courts and judicial review, hoping, if not expecting, recommendations on how the power of the courts can be curbed.

What links such attacks is that they focus on the ‘other’, making it seem as though the judiciary are invested in upholding the rights of immigrants, criminals and other perceived undesirables, rather than the rights of ‘real’ Britons.  The rhetoric of ministers like Priti Patel, the Home Secretary, and Robert Buckland, the Lord Chancellor, consistently decries ‘activist’ and ‘lefty’ lawyers, framing the issue as though they are illegitimately interfering in government policy, gumming up the works through clever legal tricks, rather than upholding rights granted, and legislation enacted, by Parliament.  

Through this, the public’s hostility towards human rights, the Human Rights Act, and ultimately, the European Convention on Human Rights (ECHR) grows.  Much like the undermining of the European Union that led to the referendum result in 2016, the attacks on the ECHR degrade and delegitimise it, making Britons feel as though it protects the interests of everyone but them, and so weakening their attachment to the rights that it protects.  Unlike most other member states to the ECHR, the UK population tends to view the rights enshrined within it as ‘European’ rather than national, with this remoteness meaning that there is little attachment to the rights. Almost inevitably, this means that if, or when, the government seeks to repeal the Human Rights Act, even if it remains a signatory to the ECHR, it will be celebrated as another part of our liberation from Europe, rather than mourned as another nail in the coffin of Britain’s liberal democracy.  

Ironically, much as the UK had particularly favourable membership terms in the EU, the government does reasonably well under the UK’s human rights legislation.  Unlike other European states, such as Germany, where the courts can strike down legislation that is incompatible with human rights, the Blair government’s desire to preserve parliamentary sovereignty meant that the UK courts were given no such power. Instead, the HRA provides for two remedies. The first, section 3, obliges the courts to interpret legislation in line with human rights ‘so far as it is possible to do so’. The second, section 4, allows the courts to grant a ‘declaration of incompatibility’, notifying the government that the legislation fails to uphold rights. 

For the most part, the courts have sought to use s.3 as a remedy, not unreasonably concluding that the wording of the legislation gives them significant scope to interpret legislation, even if stopping short of allowing them to rewrite it.  This enables them to defend rights while still ensuring the legislation’s broader purpose is fulfilled, and even if Parliament may disagree with how the courts have interpreted the statute in question. For instance, in 2004,  the House of Lords found that legislation intended to protect bereaved spouses could be extended to those in same-sex partnerships- a significant, albeit necessary, expansion of the text’s meaning.

But this power is not an unchecked one. While governments and MPs may bemoan the courts’ willingness to involve themselves, ostensibly,  in policy, the government retains the power to correct the courts’ interpretation, if it considers it to be wrong.  All that would be necessary would be for the legislation in question to be amended, asserting more clearly the outcome desired by Parliament. Yet the government has never chosen to grasp this nettle, preferring to accept the interpretations of the courts and fulminate from the sidelines rather than assert its legislative supremacy.  

The case has been similar for s.4, which imposes few real consequences on the government should it refuse to abide by a declaration of incompatibility.  Instead, it is mere convention – something that this government has had little trouble disregarding – which obliges the executive to take steps to remedy the violation, something which, until recently, it has always done.  Prisoner voting was the first time the government failed to meaningfully engage with a s.4 declaration, with both the ECtHR and the UK’s domestic courts finding the absolute ban on prisoner voting violated the ECHR. Yet while David Cameron, then prime minister, said the thought of prisoners voting made him ‘physically sick’, meagre steps were eventually taken to remedy the violation, with the Council of Europe, the body ultimately responsible for enforcing the decisions of the ECtHR, proclaiming itself satisfied with the UK’s response.

More recently, however, the government has begun to sail closer to the wind, refusing to hold an inquiry into the death of Pat Finucane, the Northern Irish lawyer, despite the Supreme Court finding last year that the inquiry held by Cameron’s government failed to meet human rights’ standard.  While no formal declaration under s.4 was made by the Supreme Court, Lord Kerr made it clear in his judgment that the Court expected the government to take steps to remedy the failure to properly investigate the state’s role in Finucane’s murder.  

By refusing to hold an inquiry, Johnson’s government shows that they are well aware that ultimately, the courts cannot force it to take action, and this sets an alarming precedent. Once the government sees that it can disregard judgments of the Supreme Court with little consequence, the force of the Court’s judgments, particularly where they are out of step with public opinion, diminishes. Should the Supreme Court, for instance, rule that Shamima Begum be returned to the UK, or that the government cannot strip her of her citizenship, will Johnson decide that more can be gained politically by refusing to abide by the decision than by respecting it?

It is in this context that the review of the Human Rights Act should be seen. Some solace can be drawn from the fact that much of the panel appears to be independent-minded, with Sir Peter Gross, a former lord justice of the Court of Appeal, unlikely to want to sully his reputation by giving the government the cover it needs to eviscerate rights. However, there are also figures, like Sir Stephen Laws, who are more sceptical of the judicial role, and the panel should be wary of their trying to push an agenda that suits the government’s desires. But there is no genuine motivation from the government to determine whether rights are being adequately upheld, just a cynical attempt to give themselves cover for any reforms of the HRA that they may propose.  Much like the Independent Review into Administrative Law, the ultimate aim of the Review is the expansion of unaccountable state power.