New Bill of Rights gives Britain power to overrule European judges on migrants

A new British Bill of Rights will give the UK powers to overrule European judges on migrants.

Dominic Raab, the Justice Secretary, will on Wednesday unveil a major overhaul of human rights laws that will make Parliament and the UK’s Supreme Court the “ultimate arbiters” on whether and how to implement European court judgments.

He will say the UK will remain within the European Convention on Human Rights (ECHR) but UK lawmakers will be free to determine how and whether to accept European judgments on policies such as the removal of migrants to claim asylum in Rwanda.

The Bill, which ministers hope will become law by the end of the year, will also make it easier to deport foreign criminals by restricting their ability to claim it breaches their right to a family life or a fair trial, as in the case of hate preacher Abu Qatada.

A new “permission” test will be introduced so that only those who can show they have suffered “material and significant harm” to their human rights will be able to go before the courts in a move to prevent people wasting judges’ time and taxpayers’ money.

Freedom of speech to be enshrined in law

It will also enshrine in law the “quintessential” British rights to a jury trial and to freedom of speech to protect against wokery, political correctness and advance of European-style privacy laws.

Mr Raab, the Deputy Prime Minister, said the Bill would strengthen “our UK tradition of freedom”, inject a “healthy dose of common sense” into the system and enable the UK to “push back” against European court judgments.

“It will make crystal clear that Parliament has the last word when it comes to the legislative function and the Supreme Court has the last word when it comes to the judicial function,” said Mr Raab.

“We will be more assertive in safeguarding our own UK case law. It is legitimate to push back on Strasbourg … If an adverse ruling comes back in an individual case, it will be up to Parliament to decide whether the law changes and how – that’s how our democracy should work.”

He cited the example of the European courts’ decision to uphold the rights of prisoners to vote, but which the UK restricted only to offenders on home detention curfews.

Courts will additionally be freed of their duty to take into account Strasbourg case law, enabling them to base decisions on UK tradition and law. “We will be very clear that UK courts … are explicitly free to diverge from [Strasbourg],” said Mr Raab.

He confirmed that Britain would be able to ignore so-called Rule 39 injunctions which prevented last week’s planned first flight of asylum seekers to Rwanda.

The Bill will make clear that such injunctions - issued just hours before the 767 flight by a lone duty judge in Strasbourg - are not “legally binding” on the UK Government or courts. Priti Patel, the Home Secretary, is currently challenging it even though there is no formal appeal mechanism.

Ministers want to cut back on family life claims

Ministers also want to “cut right back” the number of human rights appeals against deportation by foreign criminals claiming breaches of their right to a family life. They account for 70 per cent of successful challenges.

The Bill will give ministers powers to restrict the circumstances in which offenders’ right to a family life would trump public safety and the need to remove them. A criminal would have to prove a child or dependent would come to “overwhelming, unavoidable harm” if they were deported.

Criminals with longer sentences will also be less likely to be able to challenge. “The thing that we are making clear is that the right to a family life can only be relied upon in frankly the most exceptional of circumstances, if you are a foreign national convicted of a crime and sent to prison,” he said.

The Bill will also limit the ability of extremists in jails to challenge moves to hold them in “separation units” by claiming that it breaches their “right to socialise.”

The reforms by the Government will pave the way for an overhaul of the Parole Board, by placing the protection of public safety above the rights of criminals to be freed from jail.

To boost press freedom and freedom of expression, there will be a stronger test for courts to consider before they can order journalists to disclose their sources.

“We will be clear that free speech has a higher status in the pecking order of rights. That’s particularly important when you’re balancing free speech versus privacy,” said Mr Raab.

Parliamentary stewardship of our constitution must allow Human Rights Act to be revisited

By John Larkin, the former attorney general for Northern Ireland

On July 6, Baroness Hale of Richmond, the former President of the Supreme Court, will give the first plenary lecture of the 25th British Legal History Conference on The Rise and Fall of the UK Human Rights Act. I’m very much looking forward to hearing her.

It’s entirely proper to see the Human Rights Act 1998 as part of a continuous process of Parliamentary experimentation with rights protection, a bold experiment certainly, but unmistakeably an experiment. It’s a mistake to see the 1998 Act as some form of constitutional apogee which cannot be built upon, and which can only be uncritically admired.

There can be no doubt but that the Human Rights Act has given lawyers an enhanced arsenal of arguments and that cases have been brought (and won) after October 2 2000 (when the Act came into force) that could not have plausibly lifted off before that date. I won’t conceal that I have enormously enjoyed, and enjoy, arguing cases founded, wholly or partly, on the Human Rights Act. But Parliamentary stewardship of our constitution must mean that the balance struck by the Human Rights Act can be revisited.

The 1998 Act opens up subordinate legislation and acts of Parliament to judicial assessment in a way that is without precedent in our constitutional history. If an Act of Parliament cannot be struck down (as most subordinate legislation can be) a declaration of incompatibility under section 4 of the Human Rights Act is, at the very least, a profound challenge to Parliament’s policy and moral authority.

Under the Human Rights Act judges – while still immune from party political considerations – are inevitably drawn into a weighing of the merits of this or that policy while examining it, when challenged in litigation, through the range-finder of proportionality. But bluntly, the judicial view of merit matters now in a way that it
cannot have done before October 2 2000.

Before the British Bill of Rights is published only the most tentative of observations can be offered on it, but it seems already clear that it represents an important contribution to a phase of our constitutional conversation that was opened by the Human Rights Act 1998.

If reports are correct, it appears that the Bill of Rights will accord a relative primacy to the protection of freedom of expression. There is a sense in which freedom of expression ought to have a form of adjectival primacy. While no one suggests sensibly that freedom of speech is more important than life itself, the role of freedom of expression is so central to our political and cultural vigour as a nation as to require
particular attention.

The Bill of Rights affords Parliament the opportunity to revisit, and, if necessary, to adjust the presently observable trend under which personal privacy often trumps freedom of expression. It will also enable Parliament to calibrate more carefully the reach and impact of Article 8 ECHR in a number of specific policy areas.

There are very few people who would find anything to object in the bare text of the European Convention on Human Rights in its original form. There are, on the other hand, very many people who will object to that Convention being re-written through a process formally described as judicial interpretation, even if the policy outcome is one that they would have been happy to have secured through an accountable political process. Many people may like what Article 8 has been now judicially held to mean but candour will require them to admit that it didn’t mean that when it was first agreed.

Judges are insulated from consequences of policy mistakes

It is accountability that matters. Judges, unlike elected politicians, are not accountable to the public for their decisions. That is why responsibility for public policy must rest with politicians rather than judges. Sometimes the point is made – usually by lawyers – that judges may be smarter and better at policy than most politicians. But even if that were so, the two fundamental objections to substantial judicial policy-making are first, that it’s simply not the job of judges to make policy, and, second, that judges never, unlike politicians, experience loss of office, as the consequence of a failed policy. We can, and do, punish the political or policy failures of politicians. In our long-standing constitutional tradition, developed when judicial interaction with public policy was modest, judges are insulated from the consequences of policy mistakes.

In these times it is scarcely necessary to warn fellow citizens against undue faith in politicians, and it may seem Chestertonian to insist that one of the best features of an elected politician is the ease with which one may dispense with his or her services, but it is the precarious nature of a politician’s tenure that make it safe to
entrust him or her with spending our money according to one or another view of the what the common good requires.

When Parliament is about to embark on consideration of such a weighty constitutional measure as the British Bill of Rights it is worth remembering that when the great Blackstone referred in his Commentaries on the Laws of England to guardians of the constitution he was referring to Members of Parliament and not the judiciary. Let’s see if he is still right.