It’s a story we’re all tired of hearing: a dangerous criminal frustrates deportation on human rights grounds. In one case, the criminal in question — a convicted drug dealer — claimed that his right to family life under Article 8 of the European Convention on Human Rights (ECHR) meant he shouldn’t be deported.
This was a man who had been convicted of battery against his partner. He paid no maintenance towards his child. But, still, he claimed his right to family life to frustrate a deportation order. This is the kind of case that gives human rights a bad name — and undermines public trust.
It’s not a one-off. To give you a sense of the scale of this particular problem, as a result of the way the Human Rights Act (HRA) has promoted such expansive interpretations of Article 8, those claims make up about 70 per cent of all successful human rights challenges made by foreign national offenders against deportation orders.
The fault lies with the HRA — not the judges. And it’s just one illustration of why we need to restore some balance, and common sense to the system. So, today, I am setting out plans to overhaul the system, revise the HRA and replace it with a bill of rights. The proposals, we will consult widely on, are designed to deliver four key reforms.
First, we want to strengthen the quintessentially UK rights, which are the cornerstone of our tradition of liberty and, I would say, our way of life. Freedom of speech is the liberty that guards all the others. Yet, a combination of court-innovated privacy law, licensed by the HRA, and the hyper-sensitivity of some in our society to opposing views, has incrementally and surreptitiously whittled away the scope for the rambunctious debate which is essential to our democracy. That is dangerous. As the great British thinker John Stuart Mill said: “He who knows only his side of the case knows little of that.” So, under our reforms, we plan to strengthen free speech from that insidious attrition, mindful of the need to preserve our ability to tackle today’s online threats — from terrorist radicalisation to the grooming of the vulnerable by sexual predators.
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Trial by jury is another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights. We should be proud of our history of liberty — and preserve a human rights framework that promotes it.
Second, we’ll draw a clearer demarcation of the separation of powers between the courts and parliament. The calibre of our judges is globally renowned, and we should be confident in the UK’s tradition of rights, rather than importing a continental European model. So, we’ll end the duty on UK courts to take into account the case law of the Strasbourg court which has at various points been applied as a duty to slavishly follow Strasbourg. We’ll make crystal clear that the UK Supreme Court, not Strasbourg, has the ultimate authority to interpret the law in the UK.
Third, we plan to re-assert democratic control over the expansion of human rights — which is a matter for elected law-makers in parliament. This would end the practice of the courts, required by section 3 of the HRA, to alter legislation which is squarely parliament’s job. Those who make the law must be democratically accountable to the people.
Next, following our reforms to the ECHR and Strasbourg framework — under the 2012 Brighton Declaration — we can assert a greater “margin of appreciation” in applying ECHR rights at home. We plan to avail ourselves of that latitude, and engage in meaningful dialogue with Strasbourg by enacting a democratic shield. It will affirm, what should never have been put in doubt, that parliament has the last word on the law of the land in this country.
Fourth, we will re-balance the system by making clearer that rights come with responsibilities. We propose a “permission stage” for human rights claims, so applicants have to demonstrate that they have suffered a “significant disadvantage” before proceeding to sift out spurious and unmeritorious claims earlier. We’ll reform remedies, so the courts can take greater account of the behaviour of claimants, and the wider public interest, before doling out compensation to those who have done wrong.
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We can achieve all these things whilst staying a party to the ECHR. A bill of rights won’t give us a magic wand to solve all our problems, but nor would pulling out of the convention. It will reinforce the UK’s traditions of freedom, curb abuses of our human rights laws, allow us to deport more serious criminals, restore democratic control over the expansion of novel rights by the back door — and deliver a healthy dose of common sense to the system.
Dominic Raab is deputy prime minister and justice secretary