The Rights and Wrongs of the Bill of Rights

‘So, which rights do you want to lose?’ left-wingers like to sneer mockingly when I suggest that Britain should leave the European Court of Human Rights (ECtHR), but the smirk is wiped off their faces when I explain that far from protecting my rights, the European Convention on Human Rights and its Strasbourg court deprive me of them. By allowing foreign criminals, ranging from paedophiles to terrorists, to enter and remain in Britain the ECHR deprives me of the right that I would like to have to live in safety and security in my own country.  Just as you have more rights within your home than does a burglar, so the native population should have more rights in the UK than do those who enter uninvited (let alone those who go on to commit crimes here). So here is the problem with the ECHR: by failing to distinguish between Britons and foreigners, it ends up harming the rights of the former by giving undue and undeserved consideration to the latter.

So what do I think of Justice Secretary Dominic Raab’s announcement that the Human Rights Act 1998 (the HRA, introduced by Tony Blair, and which incorporates the ECHR into British law) is to be replaced by a Bill of Rights? To be honest I feel like a man who’s lost a shilling and found a sixpence.  What a wasted opportunity! Instead of scrapping the ECHR and ‘Taking Back Control’ as demanded by the British people, we will continue to be subject to foreign laws, foreign judges and a foreign court. Not much sovereignty, freedom or independence there! This government’s pathetically timid tinkering with the problem should come as no surprise to anyone: way back in 2009 Raab published the book ‘The Assault on Liberty: What Went Wrong With Rights‘ which proposed pretty much what he has come forward with now.  Defenders of the ECHR never tire of parroting the platitude that ‘the Convention was mainly written by British lawyers and politicians, including Winston Churchill’. Maybe, but read what the European Court itself says: “A number of rights have been added to the initial text with the adoption of additional protocols, concerning in particular the abolition of the death penalty, the protection of property, the right to free elections or freedom of movement … What gives the Convention its strength and makes it extremely modern is the way the Court interprets it: dynamically, in the light of present-day conditions. By its case-law the Court has extended the rights set out in the Convention”. In other words, the Convention, its interpretation and its application are certainly not what was intended by those who originally wrote it.  And here is the problem with the ECtHR: judicial activism, which claims that the Convention is a “living instrument” that can change and extend its powers and responsibilities.  

So how does the proposed Bill of Rights deal with the problems of the ECHR and ECtHR? It doesn’t. It begins in exactly the same way as the HRA: it incorporates precisely the same list of Convention rights and even uses identical language, word for word, to make clear that the ECHR is retained in full (“It is unlawful for a public authority to act in a way which is incompatible with a Convention right”). So all the appeals and court cases that are made now by people claiming their ‘human rights’ have been breached will continue! So what on earth is the point of this new law? In its own words, in theory it “clarifies and re-balances the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament” – what in practice this means is that it attempts to get British courts to consider human rights appeals with a different mentality. Yeah, well, good luck with that! Raab may have a degree in law, and experience of ECHR litigation, but he fails to understand that British judges are just as left-wing and ‘judicially active’ as their Strasbourg counterparts. Raab has said that his changes will “make it optional for UK courts to choose whether or not to follow decisions by the European Court of Human Rights”, but he doesn’t seem to realise that this is already the case – section 2 of the current HRA merely says that British courts must “take into account” ECtHR decisions, not necessarily follow them (even though that’s what they end up doing in practice).  

To be fair to Raab he has genuinely tried to steer judges into interpreting Convention rights in a much more restricted way. For instance, people will need to show they have suffered “significant disadvantage” before the courts should even hear their case, and the legislation says that courts must give “great weight” or even “greatest possible weight” (!) to sensible considerations such as freedom of speech, protecting the public or respecting the wishes of parliament. Of the 11,000 foreign criminals whom the Home Office has failed to deport, 70% invoked Article 8 of the ECHR, which protects the ‘right to family life’, so the Bill raises the bar very significantly before this protection can be used (the harm to a member of the criminal’s family must be “extreme”); very stupidly, however, this stricter threshold only applies to the deportation of criminals, not failed asylum seekers. Also, while the Bill removes the obligation that currently exists in the HRA for courts to interpret British laws “so far as it is possible to do so” in a way that is in line with the Convention, it allows courts to make a declaration that a law is incompatible with the Convention – which will simply result in human rights lawyers immediately challenging the government in Strasbourg! And the Bill seems to exempt the armed forces from ECHR legal claims relating to overseas military operations; on the face of it this is a sensible return to how the Convention was originally drafted before the Strasbourg judges extended their powers with no democratic mandate to do so – except that this exemption only applies if the minister is satisfied that this is “consistent” with the Convention! This is completely contradictory and an example of how the government is tying itself in knots in its pretence to be whittling back the powers of the ECtHR while also remaining bound to its every tenet.  

So not only do the changes in the Bill have little merit, but even those that make sense are unlikely to succeed. The first problem is that British judges are pro-European and in favour of a maximalist interpretation of the ECHR. As I said earlier, British judges are not currently obliged to follow the ECtHR – but they always do, through choice. Most of our judges are just social-marxist political activists disguised in a wig, and they are likely to continue to rule against the government no matter what the legislation is trying to encourage them to do. Although ministers have complained loudly that the recent flight of illegal migrants to Rwanda was blocked by the ECtHR – something the new Bill seeks to prevent happening in future by stipulating that “no account is to be taken of any interim measure issued by the European Court of Human Rights” – we should remember that by the time the Home Office had gone through the British courts there were only seven passengers left on board anyway! British judges cannot be trusted. Another problem is that the British government is so pathetically submissive to ECtHR rulings; of the 47 countries signed up to the ECHR only two (the Czech republic and Austria) implement the court’s rulings more promptly than Britain. We are ruled by weak, cowardly and treacherous politicians, and the Bill of Rights will not change that.  If the government genuinely intended to cut down on the abuse of the ECHR by foreign undesirables it would simply withdraw from it altogether. But it doesn’t have the courage to do this, as it would then need to amend the Belfast Agreement and the UK-EU Trade & Cooperation Agreement; you and I may think that making such changes would be a jolly good thing, but the government is too subservient to our foreign enemies to dare do so.  

The final, and greatest, problem with the proposed Bill of Rights is that even if Raab succeeds in getting British courts to rule against foreign criminals and illegal immigrants, these will just appeal to the European Court which will find in their favour and then the government will cave in. So, for example, we will find that those who failed in British courts to avoid deportation by using the ECHR’s ‘right to family life’ will need to be flown back to Britain once they win in Strasbourg. Changing the mentality of the courts will achieve nothing if the mentality of the government stays the same. Or is Raab going to say that the UK will refuse to implement the findings of the ECtHR? Because it is only by amending the legislation to clearly state that the UK will no longer accept the rulings of the Strasbourg court that the Bill of Rights could possibly work – but of course the government doesn’t have the guts to do this. So the Bill of Rights makes no sense at all – and that’s before it gets torn to shreds in the House of Lords! Is the new legislation therefore completely pointless? I’m afraid so.  Raab is engaged in an absurd distraction, merely emphasising the futility of his existence, like Rimmer in the classic television series Red Dwarf, who repainted the spaceship’s corridors from ‘Ocean Grey’ to the seemingly identical ‘Military Grey’ – and then even he couldn’t tell the difference! The collapse in the Conservative vote however shows that the British people can tell the difference between this government’s deceitful words, pretending to be patriots, and their pathetic, treacherous actions, which prove the opposite.  

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