Brittania Unchained?

Updated: Aug 14, 2020

By Tom Cryer

Amidst the chaos of last month’s cabinet reshuffle, claims of the new Attorney General’s membership in a ‘Buddhist cult’ particularly caught the public eye. Yet this is far from the most problematic characteristic of Suella Braverman MP, a former barrister and Queens’ College graduate. Braverman has made some notable interventions in legal debates in recent months, particularly a conveniently timed Conservative Home article criticising a ‘chronic and steady encroachment by the judges’ and the ‘disenfranchisement of Parliament,’ citing the Supreme Court’s decisions concerning the triggering of Article 50 in 2017 and prorogation last year. With the conspicuous absence of a relevant example, Braverman also lambasted the ‘rights-industry,’ noting that ‘the concept of fundamental human rights has been stretched beyond recognition.’[1] As a former head of the European Research Group, she has frequently argued that restoring British sovereignty requires a clean break from the European Convention of Human Rights (EHCR).

Braverman represents merely the most recent incarnation of a persistent Tory hostility to the ECHR, however, echoing criticism tracing back to David Cameron’s ‘British Bill of Rights’ project. To be clear, the ECHR has no affiliation with the European Union or European Economic Area, unlike the European Court of Justice. It was formed in 1950 by a Council of Europe meeting chaired by Conservative MP David Maxwell-Fyfe, with the intention of protecting political democracy in the wake of Soviet advances into Eastern European. Subsequently, the ECHR has been ratified by a bevy of ex-Communist states and covers 800 million people, leaving Belarus as the only European country not to be a member. Critics such as Lord Sumption have argued that the ECHR has thereby overstepped its mark. It has undoubtedly struggled to deal with such a caseload—there are 60,000 pending cases and as of last month 43% of ‘leading judgements’ made by the Court in the last ten years are pending implementation.[2]Yet the extensions of ECHR’s provisions to new concerns such as the LGBT community has been decidedly gradualist relative to social changes, with a perennial emphasis upon ‘subsidiarity.’

Indeed, in comparison to countries such as Russia the UK has been relatively compliant-it was found to have violated the ECHR by a grand total of 5 cases in 2019 and only 9% of leading judgements remain pending. Yet cases still come: in recent weeks, the UK lost a case concerning the retention of DNA and fingerprint data for one Fergus Gaughran, a Northern Irish citizen banned from driving for a year in 2008. The seven-judge European Court of Human Rights panel ruled unanimously that retaining his DNA without ‘reference to the seriousness of his offence’ and without providing an opportunity to challenge said retention or its inadequate safeguards ‘amounted to an interference’ in his private life.[3] Article 7 of the ECHR, that prohibiting retrospective criminals laws, also looks likely to impede legislation designed in the aftermath of the Streatham attacks to prevent convicted terrorists from being automatically released.[4] Finally, the Equality and Human Rights Commission, a domestic non-departmental body safeguarding fairness, has also launched a legal challenge against the Department of Health, accusing the government of breaching the ECHR by failing to meet targets to improve the treatment and housing of more than 2,000 people with autism and learning disabilities.[5]

Public criticism of the broader legal system has been exacerbated by several recent legal battles concerning citizenship—a Court of Appeal decision to temporarily block the deportation of 50 detainees to Jamaica ‘unless satisfied [they] had access to a functioning, non-O2 sim card’ with which to access legal advice.[6] Meanwhile, the appeal process of Shamima Begum against the revocation of her citizenship continues. Such cases attest to the recent exponential rise in citizenship deprivation, powers initially provided by New Labour and amplified by the 2014 Immigration Act. This allowed citizenship to be deprived, even to the extent of leaving an individual stateless, when their continued citizenship would be ‘seriously prejudicial to the vital interests of the UK.’[7] It therefore wholly reflected an increased emphasis and public acceptance for rights conditionality, with Braverman querying ‘Will the Minister confirm that British Citizenship is a privilege, not a right.’ From 1973 to 2010 there were eleven deprivation cases, by 2017 and 2018 cases exceeded one hundred annually.[8]

Clearly, all these issues have become increasingly intertwined in recent public discourse. In calculatedly vague language, the 2019 Tory manifesto pledged to ‘update the Human Rights Act…to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.’ With Brexit done, it was promised that ‘Britain will take back control of its laws,’ ending the ‘supremacy of European laws’ and creating alternatives that ‘maintain high standards but which work best for the UK.’ This is only one aspect of an ostensibly innocuous review of the ‘broader aspects of our constitution’ to be carried out by a ‘Constitution, Democracy and Rights Commission,’ charged with finding proposals ‘to restore trust in our institutions and in how our democracy operates.’[9]

In reality, any effort to escape ECHR jurisdiction is likely to be extremely difficult and complicated by devolution. Many rights will be covered through other international commitments, common law and the UK’s own 2000 Human Rights Act, which gave effect in domestic law to many rights and freedoms covered by the ECHR. The government will either have to make substantial changes to this legislation, risking a challenge in the Lords, or temporarily derogate from the ECHR through Article 15, a measure intended for emergencies and previously adopted during the Northern Ireland conflict. Further cuts in legal aid and limitations on judicial review may gradually alter the direction of travel. Yet such legal detail may be wholly irrelevant to the political calculus of an executive with an 80-MP majority. Dominic Cummings has called for a referendum on the EHCR, a handy way to resurrect populist sentiment in an EU Referendum Mark 2. Other key priorities will be appearing tough on terrorism and defending veterans of the Troubles from ‘vexatious claims.’[10] In short, wholescale changes in legislation are likely to take a back seat to a drip feed-of emotional appeals couched in British exceptionalism and case-by-case grandstanding. The opposition must not merely block such intentions within parliament, risking exacerbating public opinion. A positive case must be made to the public, justifying human rights as universal principles that serve rather than contradict British interests. Law floats in a sea of ethics—without them we may be left skating unchained, alone and on very thin ice.

[1] <https://www.conservativehome.com/platform/2020/01/suella-braverman-people-we-elect-must-take-back-control-from-people-we-dont-who-include-the-judges.html>

[2] <http://www.einnetwork.org/countries-overview>

[3] <https://www.rte.ie/news/courts/2020/0213/1115046-fergus-gaughran/>

[4] <http://theconversation.com/no-evidence-to-back-up-emergency-terror-law-change-human-rights-expert-131169>

[5] <https://www.bmj.com/content/368/bmj.m578>

[6] <https://www.aljazeera.com/news/2020/02/uk-proceeds-deportation-flight-jamaica-backlash-200211074127213.html>

[7] Immigration Bill Fact Sheet: Deprivation of Citizenship (Clause 6), < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277578/Factsheet_15_Deprivation.pdf>

[8] <https://www.theguardian.com/commentisfree/2020/feb/16/citizenship-precious-right-not-to-be-arbitrarily-revoked-by-the-state >; <https://www.thetimes.co.uk/article/ministers-strip-150-jihadists-of-uk-passports-53fn899w2>

[9] Conservative Party Manifesto, p.48. <https://assets-global.website-files.com/5da42e2cae7ebd3f8bde353c/5dda924905da587992a064ba_Conservative%202019%20Manifesto.pdf>

[10] <https://www.france24.com/en/20191111-dublin-warns-uk-pm-no-amnesty-for-soldiers-in-n-ireland>

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