You’ve got to give ministers top marks for irony for opening a debate about freedom just as our personal liberties are being curtailed. In a foreword to his long-promised proposals for a new Bill of Rights, Dominic Raab, the Justice Secretary, reasserts the Government’s “enduring commitment to liberty under the rule of law”. Reading those fine words while sitting on a train wearing a mask on the way to an office I have been urged to avoid was an unsettling experience. I don’t feel very free at the moment.
Then again, we are in the midst of a pandemic and illiberal measures are deemed necessary to hold back the latest wave of Covid. Moreover, notwithstanding the misgivings of many Tory MPs, some of whom voted against the Government last night, they have been passed by parliament, not imposed by state decree – though, who knows, Christmas may yet be cancelled by Prime Ministerial fiat.
The important thing is that, like them or not, they are domestic laws agreed by our elected representatives who are accountable to the voters. What Mr Raab’s reforms seek to address is the imposition of rules by an extra-territorial judicial body answerable to no-one.
A few years ago seemingly bonkers judgments emanating from the European Court in Strasbourg dominated political discourse. We couldn’t deport terrorists, the right to family life meant wife beaters could stay in the country after serving a term in jail and parliament was told that it could not restrict prisoners from voting. The matter of enfranchisement was to be decided by a foreign court not by elected representatives.
Most absurdly, as the then home secretary Theresa May informed an appalled Conservative conference in 2011, an illegal immigrant was allowed to stay in the country because of his pet cat. This was literally incredible, since it turned out not to be true, though the man had been allowed to remain, which was surely the most important point.
The biggest problem in this debate has been the propensity of both sides to make claims that are excessive. The disdain reserved by some for “so-called ‘umin rights” tends to belittle what is a noble cause. On the other hand, those who say any attempt to reform the way we interpret rulings by the Strasbourg court marks the end of civilisation as we know it are talking tendentious rubbish.
There should not really be any “sides” at all in this since no-one, so far as I am aware, is proposing removing fundamental rights from anyone. But it has become a proxy casus belli for the same groups who squared up to one another over Brexit, and the question is the same. Should we rule ourselves and make our own laws or should we be subject to extra-territorial political and judicial governance?
The ECHR was drawn up in 1950 in response to the denial of basic liberties in Europe, such as the right not to be rounded up because of your religion and murdered. Its authors were concerned to ensure that fundamental freedoms that we took for granted were bestowed upon the people of countries who had never known them. One trope beloved of those who favour an internationalist approach – mostly, though not exclusively, on the Left – is that the European Convention of Human Rights (ECHR) was predominantly written by jurists who were not only British but Conservatives to boot.
This is the only time that so-called progressives ever acknowledge that Tories have done anything beneficial to mankind, but only because it is a stick with which to beat the current government, particularly Boris Johnson and Mr Raab. They contend that any overhaul of human rights law is a “betrayal” of these founding fathers. By this logic, signatories to the ECHR such as Russia and Turkey would be beacons of freedom whereas Britain, home of Magna Carta, would be on the road to tyranny if we withdrew from the convention.
In any case, leaving the ECHR is not going to happen and neither was it ever a realistic political option even if some proponents gave the impression it might be. What is proposed in a new Bill of Rights is to rebalance a system that has given too much power to supranational courts to overrule decisions of Parliament. It is to bring credibility back to what most people understand as the liberty of the citizen.
For Mr Raab this is the culmination of a long-term political ambition. He has been at the forefront of this debate since before he became an MP, writing a book on the subject The Assault on Liberty: What Went Wrong with Rights (2009).
Mr Raab’s principal concern was how a foreign rights culture, imported from a wholly different legal and judicial tradition, was encroaching on a centuries-old British system that has the institutions – parliament and the courts – capable of defending rights and liberties. The incorporation of the ECHR into British law through the Human Rights Act (HRA) muddied what used to be fairly clear waters, arrogating to the Strasbourg court an authority that was never envisaged.
As the human rights lobby once again works itself into a lather of indignation over Mr Raab’s proposals it should be noted that criticism of the convention and of the Strasbourg court’s aggrandising tendencies is not an obsession of Right-wing zealots.
Concern has been voiced by eminent judges like Lord Hoffmann who said the court had “taken upon itself an extraordinary power to micromanage the legal systems of the member states of the Council of Europe”. Or the late Lord McCluskey, vice-chairman of the Human Rights Institute of the International Bar Association, who said of the HRA: “By incorporating into our domestic law vague, imprecise and high-sounding statements of legal rights, we hand what is truly legislative power away from a democratic and accountable Parliament to an appointed, unelected and unaccountable judiciary.”
Or Lord Sumption, the former Supreme Court judge, who has pointed out that the fundamental issue here is constitutional: how do we make laws for a democracy? He would go even further than proposed and withdraw from the convention itself. Indeed, that may yet return as an option should Mr Raab’s Bill of Rights fail to deliver the reforms that are needed.
