Suella Braverman is Attorney General, and is MP for Fareham.
We have a rich heritage of rights in the UK. Though we’ve sometimes fallen short, a belief in equality has been persistent enough in our culture that we’ve always had loud voices calling on us to mend our ways — as with slavery. We now have a large body of rights for people who work in factories, building sites, drive HGVs, and work nights. We’ve passed anti-discrimination laws when it comes to disability and sex. We now, rightly, have a right to compassionate leave, paternity leave, maternity leave and shared parental leave.
But there is now a serious risk that a blinkered approach to rights in some areas is harming the overall balance of rights in society. The judicially expanded European Convention on Human Rights and New Labour’s Human Rights Act marked a radical change in how fundamental rights are protected in the UK, with alarming constitutional and practical consequences.
We now have a ‘rights culture’ in a way that did not exist prior to 1998 — and this has caused confusion and distress in some areas. In my view, many of the difficult cases we have seen, have been symptomatic of this long tail of Blairism.
In the late 1970s the European Court of Human Rights in Strasbourg introduced the so-called “living instrument” doctrine and began to interpret the Convention in ways that cannot be squared with the intentions of the signatories. The doctrine hides the uncertainties of human rights behind the claimed certainties of judicial decision making.
In his Reith Lecture, Lord Sumption observed that by interpreting the Convention as a living instrument, the Strasbourg Court recognises rights which states did not intend to grant, and which are not within the Convention’s original object and purpose. This is contrary to legally binding norms of treaty interpretation. This is why he described the Convention as a “dynamic treaty”. In his words, the result is “to transfer an essentially legislative power to an international body standing outside the constitutional framework of the United Kingdom.”
The Strasbourg bench of judges is composed of justices from continental legal systems who are used to operating without a formal doctrine of binding precedent. This means that their habit is to force the ‘right’ result in the case — even if that means straining the law — with less of a focus on how that case will influence future cases. When coupled with the living instrument doctrine, the Convention has rapidly and unpredictably expanded. As Lord Hoffmann has said, this has meant that the Convention is given meanings “which could not possibly have been intended by its subscribers”.
Stark examples of the real-world impact of the living instrument doctrine include the expansion of Article 8, the right for respect of private and family life. The Convention originally conceived this right as guarding against overbearing Government intervention in family life — like arbitrary house searches by the police — as a direct reaction to authoritarianism. However, this right has been radically extended today.
Take the case of a Nigerian national — called OO by the court — who was sentenced in 2016 to four years in prison for offences including possessing crack cocaine and heroin with the intention to supply, and then pleaded guilty in 2017 to battery and assault. In 2020, the First-tier Tribunal allowed his appeal against deportation on grounds that OO’s “very significant obstacles” to integration in Nigeria outweighed the public interest in his deportation, despite the serious nature of his offending, and deportation was irreconcilable with Article 8 (the right to respect for private and family life). The Upper Tribunal upheld that decision on appeal.
After a series of contradictory decisions by the Strasbourg Court, more procedural burdens were created by our Supreme Court in AM (Zimbabwe) v Home Secretary in 2020. States wishing to remove someone must now prove that the medical facilities available to the deportee in their home country would remove any real risk that their lifespan would be shortened by removal from NHS facilities. When someone is being deported from a developed to a developing country this will often be the case. This places an increased burden on our national resources and extends the concept of “fundamental rights” beyond what was originally intended.
In short, the Strasbourg Court has operated to thwart aspects of our domestic policy making in relation to illegal migration. This conclusion is aptly demonstrated by the authoritative study for Policy Exchange by John Finnis and Simon Murray, and strongly endorsed by Lord Hoffmann.
When the Human Rights Act came into force, domestic courts were empowered to oversee rights protection and stand in judgement over decisions made by Parliament and government about how best to act. At the time, extensive efforts were put into training judges in this new rights framework and how it should be interpreted.
This created a direct avenue for Strasbourg interpretive methods to pervade British judicial reasoning. The intensive standard of proportionality under the Human Rights Act — in contrast to the British common sense test of Wednesbury unreasonableness (A decision is “Wednesbury unreasonable” if it is so unreasonable that no reasonable person acting reasonably could have made it) — has proven problematic. A clear example is in relation to its use enabling Convention rights as defences to criminal damage charges.
In the Ziegler case, the UK Supreme Court set aside several protestors’ convictions for wilfully obstructing a highway. It held that in light of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the Convention, protestors can claim a ‘lawful excuse’ for deliberate physically obstructive conduct even where it prevents other users from exercising their rights to pass along the highway.
In the Colston statue case, the trial judge directed the jury that, before they could convict for criminal damage, the jury must be sure that doing so would be a ‘proportionate interference’ — in other words compatible — with the defendants’ exercise of their human rights. The legal uncertainty that these cases illustrate prompted me to refer questions of law to the Court of Appeal.
These questions concern the proper scope of defences to criminal charges arising from protests, and the directions which should be given to juries in such cases. My referral will not overturn the acquittals in this case but the backlash that I have received for merely making a reference — on a point of law! — demonstrates how politicised and inflamed many of these issues have become, precisely because they have been removed from the political arena and placed in unattackable court rooms. There was at least one other voice of reason in this media storm: retired Old Bailey judge Charles Wide. His Policy Exchange paper made it very clear that there was a compelling case for referral. We await the Court of Appeal’s decision.
This Government’s reforms to the Human Rights Act will bring welcome predictability to these imported and vague Human Rights standards. They will prevent trivial human rights claims from wasting judges’ time and wasting taxpayer’s money by introducing a permission stage in court, requiring claimants to show they have suffered a significant disadvantage before their claim can go ahead. They will also reinforce in law the principle that responsibilities to society are as important as personal rights by ensuring courts consider a claimant’s relevant conduct, like criminal behaviour, when awarding damages.
No matter what side of the debate one takes on the scope of fundamental rights, and what the law ought to be, the primary and legitimate vehicle to resolve disagreement is Parliament. The reason for this is simple and yet profound: our Parliament is elected by the people, for the people, to enable self-government. Ultimately it is up to Parliament — the voice of the people and our highest source of law — to give clear answers to these questions.
This article is based on a speech that the Attorney General gave yesterday at Policy Exchange.