Wounded as Boris Johnson is, it is worth remembering that his government still has plans for the most significant attack on human rights in twenty years.
By that I do not mean the Police, Crime, Sentencing and Courts Bill, or the Judicial Review and Courts Bill, bad as both are. I am thinking, rather, of the government’s consultation on watering down the Human Rights Act.
For sixteen years, Conservative MPs have been calling for that act to be repealed. Their voices have been amplified by the right-wing press, with stories blaming immigration on lawyers finding human rights defenses for their clients.
That campaign obscures the historic function of the act. Before it was passed in 1998, if a citizen wanted to challenge an act of government as unlawful, they would invoke our unwritten constitution and our “common law” (i.e., judge-made) tradition of the rule of law.
Essential rights such as the authority of a jury over a judge were established on a case-by-case basis without any agreement as to what the most important rights were — whether it was the right to silence, or freedom from slavery, or freedom from torture.
The reason the Human Rights Act passed is that there had been one attempt to codify the common law tradition — after 1945, when a group of Conservative lawyers had wanted to draw up minimum legal standards for Europe after the defeat of fascism. They had summarized the UK tradition into twenty articles for export: the European Convention on Human Rights.
In passing the Human Rights Act in 1998, a Labour government took the convention and chose to use it both as a statement of universal human rights principles and as the best starting guide to the common law. The UK “constitutionalized” the common law (i.e., recorded it in a single document), providing a degree of certainty for the first time.
It would, in principle, be open to any government to repeal the Human Rights Act and withdraw from the Strasbourg human rights court. We could start again and say that only domestically recognized rights matter. Two states in Europe refuse to accept the European Convention on Human Rights: the Vatican City and Alexander Lukashenko’s dictatorship in Belarus. We could join them, but it would be such a defeat for British ambitions of soft power that not even Boris Johnson proposes that.
The Conservatives propose, rather, a pick-and-mix attitude toward rights, in which some rights would be enhanced and others would be diminished.
The government’s central purpose in attacking human rights is to prevent “illegal and irregular migration,” by which ministers mean that refugees have the temerity to arrive in Britain on false travel documents. But that is the point about dictatorships: they jail or kill their critics — they do not give them visas to help them make their protests from abroad.
The government wants to put obstacles in the way of human rights claims; for example, requiring permission before they can be brought, or preventing courts from enforcing certain rights contained in the convention, or reducing the power of the courts to strike down legislation intended to curtail rights.
But the Human Rights Act has been used by a wide-ranging coalition of interests and campaigners: the Hillsborough families, tenants fighting eviction, parents trying to challenge local authority proposals to take children into care. The new obstacles would not only harm migrants — they would take rights from everyone.
What is most striking is the lack of ambition behind the government’s proposals. It would not be difficult to take the existing Human Rights Act and bolster it to make certain rights overt that have too little protection in the law. A more ambitious government, seeking to increase popular rights, might constitutionalize the right to housing, to be fed, to the environment.
We are supposed to be governed by a generation of “libertarian” MPs. If so, then why not increase people’s ability to challenge the state — by reducing the barriers to Human Rights claims, making them cheaper and easier to bring, and not restricting them to the High Court?
Instead, the consultation would work by taking away much that we have now, and in return only add two things — a vague commitment to jury trials and a restatement of the existing defense of free speech.
Would a British Bill of Rights protecting trial by jury have shielded the Edward Colston jurors from ministers’ criticisms of them? Indeed, how does the government have the cheek to pretend it supports trial by jury, when it is increasing the sentences magistrates’ courts can pass from six months to a year, thereby taking tens of thousands of trials away from juries?
Would a clause protecting free speech cause the government to pause for a moment, before implementing its Police, Crime, Sentencing and Courts Bill, with its bans on noisy protests and its criminalization of traveler encampments?
To ask the questions is to answer them. The Conservatives’ proposals will only strengthen the state: the party’s libertarianism is skin-deep. Their changes to the Human Rights Act will only serve to make rights harder to enforce.
If the removal of Boris Johnson would make it harder for the government to press on with its plans to take away our rights, then his fall cannot come soon enough.