The Guardian view on Brexit’s unsound legal thinking: turning back the clock
The government “should not proceed” with its bill of rights. That was the withering judgment delivered last week on Dominic Raab’s proposals by parliament’s joint committee on human rights. MPs and peers assessed the bill and correctly decided that the ideal outcome for the country was to drop the deeply flawed legislation. It’s not a bill of rights so much as a bill of wrongs. The cross-party committee said the justice secretary’s proposals would reduce the protections currently provided, make it harder to enforce human rights, and show contempt for international obligations.
The Conservative party in its present guise is determined to free the executive from accountability, and Mr Raab’s ideas are part of a power grab that includes attempts to restrict judicial review, the right of protest and freedom of expression. Making his bill law would see Britain turn its back on the gains made by human rights legislation. Major advances made by disabled people, same‐sex couples and Windrush victims would never have occurred under these proposals.
The committee’s report warns that had Mr Raab’s bill been enacted earlier, there would have been no challenge to the police’s flawed investigation into serial sex offender John Worboys and no Hillsborough inquest. Unsurprisingly, there is no significant backing from the public, the judiciary or civil society for Mr Raab’s bill. Neither the government-commissioned independent review nor the government’s consultation produced much support for the proposals.
Instead, the evidence was “overwhelmingly” against Mr Raab’s bill, which aims to repeal and replace the Human Rights Act. Since 2000 this law has allowed British people to enforce the rights afforded by the European convention on human rights in UK courts rather than going to Strasbourg. Mr Raab’s proposals plainly imply that the ECHR has been taken too far, with the bench unearthing new rights that were not in the text of the convention.
This a Brexit version of American rightwingers’ “originalist” legal argument. It sees the convention as the people who wrote it – in this case in the early 1950s – would have. This would upend the prevailing “living instrument” doctrine, where the convention is understood in the light of present-day conditions. The committee drily notes that the government wants to “encourage the courts to interpret convention rights as they would have been read in the 1950s, not the 21st century”.
Worse may be yet to come. The European court of human rights in Strasbourg applies the same principles across the 46 Council of Europe member states. Mr Raab has refused to rule out the UK leaving the convention in the future, putting Britain alongside rogue regimes like Russia and Belarus. The legal writer Joshua Rozenberg points out that this country has the best human rights record in Europe. Putting the UK, which had violated the convention in just two cases, on a par with Russia, with 374 violations until it was expelled over its Ukraine invasion last year, would be ludicrous, it seems, to all except Conservative ministers.
Even if Mr Raab leaves the cabinet, others are likely to take up the baton. Last August, Suella Braverman, the current home secretary, said it was a “national priority” to extricate the UK from the influence of the Strasbourg court. The good news is that Mr Rozenberg thinks it is “unlikely” that the bill would pass in its present form. It would be better if the legislation was dropped entirely.