Reform party leader Nigel Farage recently announced major plans for dealing with illegal migration, which if his party were to win power, would include leaving the European Convention on Human Rights, while repealing the Human Rights Act 1998 and replacing it with a British Bill of Rights, as well as passing an Illegal Migration (Mass Deportation) Bill.
Given the long list of recycled policies brought forward by successive governments to control illegal migration, but which have ultimately failed, it is now finally coming to the fore among some of the wiser heads in British politics, that we may need to consider leaving, or reforming, the European Convention, while repealing the Human Rights Act. It is great to see, at long last, an important public debate on the future of British rights – and who governs in the best interests for the rights of the people.
Essentially, the answer to the small boats challenge rests on restoring the structure of Britain’s constitutional order, which has been severely eroded for many decades on the altar of a globalised politics, with its commitment to international law and foreign rights charters. This has hampered our own rule of law and domestic order of rights. There are some hard truths in attempting to remedy this unfortunate path of British political history, and it remains deeply uncomfortable for the career-MPs, officials and activist lawyers who have advocated for it. In the absence of other suitable remedies, which we have tried and failed, we must now likely withdraw from the Convention and repeal the Human Rights Act.
Successive governments have long insisted they can have their cake and eat it: we want both a healthy model of parliamentary democracy while continuing to unquestionably insist on harmonising with an unfettered set of international obligations under the Human Rights Act. On the surface, that Act claims to protect fundamental rights by giving legal effect to the European Convention in Britain. And yet significant parts of the electorate, for many years, have been sceptical of the warped interpretations of the Convention’s articles and the inability to challenge decisions flowing from those unfettered commitments.
Rights should no longer be administered by a foreign court and unchallengeable by the public
The continued case for judicial supremacy made possible through the Act lacks any sense of constitutional legitimacy. Why on earth, some might ask, are we looking to judges to decide whether asylum seekers should remain in every circumstance? It should be written in statute and the judges must obey. The Human Rights Act has increased a form of judicial activism and extended the realm of the courts, but parliament claims to retain ultimate authority and could rein in the courts if it chooses to.
However, and this is the equally uncomfortable truth for those on the centre-right, neither on that basis therefore should political leaders accept a British Bill of Rights — it would also suffer from an equal lack of constitutional legitimacy. We already have ample laws that protect our rights. A homegrown grand declaration of rights would therefore serve no useful purpose and, because of its inevitable vagueness, it would create new openings for judicial supremacism.
As I argued in my 2020 book, Rebalancing the British Constitution, the United Kingdom has long resisted the idea of adopting a judicially reviewable bill of rights, which historically has been considered inconsistent with the core constitutional principle of parliamentary sovereignty. Those who have sought to avoid repealing the Human Rights Act as a potentially simpler way of answering to the difficulties have advocated either a Bill of Rights and on some occasions, called for changes of a more political nature in the appointments of judges. Both would deeply politicise the judiciary, transform the nature of the legal process, if not discredit the independence of the judges. And the independence of the rule of law must be protected.
The only real form of democracy we have, a parliamentary democracy, rests on ensuring the only popularly elected institution in Britain’s constitution, namely, the parliament, forms the centre of the democratic process, in which voters have genuine input through regular elections. Parliament is therefore only able to ensure representative government because MPs in the House of Commons as a whole serve as the democratic cockpit of the nation in the delivery of some agreed-upon common goods and rights. Its reasonableness and sanctity as a chamber of debate is eroded over the long-term when it forgoes that obligation for some other superior set of international rights, laws and obligations.
Through debate in parliament, it is the purpose of that institution to maintain a deliberative democracy, not fence off a national debate on rights matters where society disagrees through erecting a pre-ordained set of internationally-sanctioned, court-decided rights. It becomes difficult to see what kind of democratic culture exists where it is decided in the public interest that debate, discussion and argument amongst elected representatives — guaranteed through the choices of citizens at elections — are no longer needed to decide on which fundamental rights and laws should be prioritised and maintained.
The incorporation of the Convention, through the Act, created a questionable new role for British judges in determining policy outcomes. The Human Rights Act is said to be “an integral part” of the British constitution, because on paper it claims to check unwieldy executive power and yet in practice, it emboldened a new source of judicial authority of rights, far removed and insulated from the electorate, regular public debate and decision-making in parliament.
By considering a policy of abolishing the Act which has caused so many repeated and grave difficulties for the country itself — from deportation of terror suspects to inability to target illegal migrants — and to restore the role of parliamentary democracy, Britain could then finally withdraw from the jurisdiction of the European Court of Human Rights and cease to be a signatory to the Convention.
As we are among the EU-ropeans but not of them, Parliament and the courts would continue to be respectful of the rights entailed in the Convention. This would symbolise Britain’s continuing recognition of the basic aspirational standards set out in the Convention as a basic moral code that may be used to guide decision-making.
It has become patently clear that the Human Rights Act, incorporating the Convention, as well as the Strasbourg court and its expansive European-style judicial interpretation have all contributed towards significant political failures across all policy fronts and an ongoing detrimental impact on Britain’s democratic culture. It has damaged the essence of our parliamentary democracy and sovereignty. It exerts a constant threat of judicial supremacy justified under a rapidly evolving Strasbourg jurisprudence.
The Act has enabled the erosion of executive power of those in charge of governing, protecting and defending the national interest. It sets aside the domestic need to reinvigorate our own national British human rights “moral code”, including the capacity to politically debate and settle those rights for ourselves — that is, not to have an unfettered code of rights imposed from above. On rights questions, Britain must urgently put its house in order.
To complement the equally flawed European integration project, and as a result of many years of campaigning by lawyers, judges, international rights activists and pressure groups, the 1998 Act led to vitally important changes including the emboldening of judicial supremacy within the constitutional order. Against the novelties of the Human Rights Act and the haste of incorporating vastly expansive Strasbourg court jurisprudence, Britain’s unwritten constitution and its explicit democratic culture have been set aside.
It is often claimed by senior members of the judiciary that we need a codified constitution with deeper claims to legal rights — irrespective of this compelling a more litigious, grievance-driven and extreme form of society, governed by judges and lawyers, not by democratically elected representatives — but this movement of legal codifiers entirely misses the politics of our age. Restoring our democratic culture requires a stronger democratic process in which all applicable rights and laws — including over asylum and immigration — be derived from a strongly contested debate within the public sphere; they are no longer there to be administered by a foreign court and unchallengeable by the public or left practically unamendable by parliament.
It is time for all parties to move beyond the old Hobson’s choice of a failed Human Rights Act or a Bill of Rights, and to begin to accept the principles of responsible government. Ministers and parliament must accept, not abdicate, their role as key decision-makers in the British democratic system. No more lawyer’s charters required.
The fervent judicialisation of politics, with all its negative consequences for parliamentary democracy, should be replaced with a national public conversation and greater parliamentary decision-making on rights. By abolishing the Human Rights Act, political disagreements on rights by majority-decision would enable a respectful discourse by the taking of votes on rights issues. Legislation by a parliament enjoys an infinitely greater sense of democratic legitimacy than decisions made by judicial review.
The openness to politics as the foundation of rights entails the rejection of them as constitutionally entrenched and politically immovable. The Act was an abdication of legislative responsibility — the product of the political class of 1998, fearing the process of debate and argument on rights. To have marginalised entire sections of society from rights-questions under the Act — which has often included marginalising the majority of voters — in the consenting to, and making of rights (as a matter “not for them”), is a judgement on which the disregarded majorities have taken great offence.
