The Government’s Plans for Human Rights

The consultation on the Human Rights Act


The Conservative Government in general and the Secretary of State for Justice Dominic Raab in particular have a problem with human rights.  It is one of their own making and from which the convoluted consultation paper published on Tuesday is an effort to escape – but it is very unlikely to succeed.

On the one hand the UK government preaches human rights around the world, insisting that various countries of whose conduct they disapprove adhere to them, with Liz Truss playing the role of a latter-day Lord Palmerston, just as Mr Raab did when he was Foreign Secretary.   We cannot pause here to reflect on the absurdity of this mid-ranking, rather friendless country barking instructions at the likes of China and Russia because we must move briskly on to an even greater silliness – the fact that in the Tory vision of the world the only people who can’t have human rights are the British.

This bizarre position is a legacy of the Brexit wars. In the early pre-Brexit days, the Eurosceptics (as they were then called) made a fuss about the European Convention on Human Rights and the European Court of Human Rights in Strasbourg because they were a useful proxy target in the war against the real Europe, the entirely different EU. That war is now won (ho! ho!) but the proxy war against the European Convention’s domestic incarnation the Human Rights Act continues on a kind of auto-pilot, with no one knowing quite how to stop it.

The brave thing for Mr Raab and his colleagues to do would be to repeal the Human Rights Act entirely and without replacing it, at the same time withdrawing from the Council of Europe and so ditch the European Convention on Human Rights and the authority of the European Court of Human Rights altogether, truly taking back control. Theresa May actually suggested this before the Referendum in 2016, but it is proving too much for even these most red-blooded of Brexiteers.  It would be brave but suicidally bonkers, leaving the UK alone with Belarus outside the Council’s large tent (in which Russia and Turkey are among the 47 states to be found) and thus debilitating sad Brexit Britain’s diplomatic reach even more. It would also incur the wrath of the Americans (what about Northern Ireland’s Good Friday Agreement!) and the EU (to which human rights promises were made during the withdrawal process).

The result of this sensible failure of nerve is a dogs-dinner of a proposal full of grand but fairly empty gestures to please the anti-Europeans and imperial nostalgists who run the country these days, with a few bullying attacks on the weak and vulnerable thrown in just to show off how tough, how hard our leaders truly are.

The gestures first. It is to be a British bill of rights but with the same content as that never-to-be-mentioned Voldemort of documents the European Convention. There will be ‘some mention’ of responsibilities. Britishy things will be added (a qualified (shame!) right to a jury; er is that it?) and the Strasbourg court can be ignored by the UK courts (it can be already) while other countries courts can be referred to in judgments (ditto).  The power to twist things to fit with rights will be modified but probably not removed so the twisting will need to be a bit more carefully done.  The Daily Mail sort of gets its wish to have privacy removed so they can start ruining people’s lives again now Paul Dacre is back in charge but then again maybe it will survive – the government doesn’t plan to remove privacy altogether and anyway it is now weaved into the common law which of course they love so much.

That is it, pretty much. The controls placed by the present Act on public authorities are broadly fine as is the current system of unenforceable declarations of incompatibility which are occasional made against statutes. The institutional restraint shown by the courts is also good (and Lord Reed’s Supreme Court has certainly been making things easy on that score, with yet another decision reining itself in handed down the day after the Consultation Paper was published.  Of course you will find lots wrong with any statute if you resource an independent team to write a 580 page critique of it, as the government did as a prelude to this consultation. Most of the critique in that worthy and dense report belongs at the dreary end of law reform, not the front pages of the right-wing press, however Mr Raab talks his plans up.

In truth the government is hemmed in by facts. Northern Ireland requires the Convention and no end of knit-picking about the difference between that document and the case-law in Strasbourg can get away from this capital fact.  The Convention is likewise baked into the devolution settlements of Scotland and Wales and pulling it and/or its Strasbourg cases out of these frameworks against the wishes of the locals is likely to generate a series of chaotic constitutional wars.   Not following Strasbourg while keeping access to that court open merely returns us to the 1980s and 1990s – constant ill-tempered complaints from the UK about Strasbourg cases to which they invariably acquiesce in the end. The spies at GCHQ noticed this and forced Mr Raab to keep the extra-territoriality of the current law in his new Bill, depriving him of a headline-grabbing ‘the military can infringe human rights abroad’ boast, but thereby avoiding the exposure of our spies and soldiers to public scrutiny in Strasbourg when our courts here in the UK have been proving themselves so very accommodating about secret hearings and secret witnesses and so on.

The bullying is clearer than the grandstanding, aimed at a predictable array of vulnerable people for whom tough lives will be made even tougher. This includes the usual asylum seekers and foreigners fighting deportation but also – bizarrely – children whom the State has been trying to protect from their parents and those (usually baddies the government claims) whom human rights law insists should be told when their lives are at risk.  ‘Enough of this human rights nonsense’ might not be a sufficient answer if a campaign against whatever emerges from the consultation gathers momentum. The Labour leader Keir Starmer is mentioned a number of times in his previous capacity as a human rights expert, and there are odd little anti-wokish sentences now and again which are clearly intended to incite. Labour should relish the fight.   This is one they can win.


16 December 2021

Mr Johnson’s calamitous premiership

[This article appears in the Christmas edition of that wonderful Catholic weekly The Tablet: do consider checking the magazine out and subscribing if you like what you see]

-Do these names ring any bells: Tim Yeo, Allan Stewart, Hartley Booth, David Trevinnick, Graham Riddick, Tim Smith, Patrick Nicholls? They were just some of the bit-part players in the great Tory sleaze crisis of the mid 1990s, widely believed to have combined with economic mismanagement to guarantee the Party’s huge defeat in 1997.  The big beasts in that Conservative calamity – whose names you are more likely to remember – included Cecil Parkinson, David Mellor, Norman Lamont, and this is before we even get to those who were forced out of office for stupid words rather than suspect deeds, amongst them Edwina Currie (salmonella rife in eggs) and Nicholas Ridley (can’t stand the Germans). Every day seemed to bring a new story of infamy in high office. 

It might be thought that little has changed since this last time the Conservatives enjoyed a similarly lengthy period in office.  Owen Paterson is today’s Neil Hamilton, protesting his innocence while he pockets cash, not for questions this time but for influence. Matt Hancock kisses his girlfriend in the way that Piers Merchant kissed his wife in a gruesome public display of fidelity shortly after news of the affair that was to end his career had broken. Boris Johnson is, however, no John Major. The current prime minister is himself an epitome of the moral emptiness that in that earlier era brought men down.  And yet he remains in post.  Here is surely a material break with the past. Wrong produces sniggering not the sack, contriteness merely simulated while the next ruse is pondered.  

The impunity feels real this time.  Public culture seems genuinely to have changed, with the prime minister the beneficiary of a now prevailing public taste in which celebrity is everything and immoral behaviour counts for nothing. News rushes at such high speed that little holds the imagination for longer than a nano-second. What matters are not the details any more but rather the overall narrative – and so far as Johnson is concerned that has up to just very recently proved remarkably durable; he has remained that lively bloke from the telly who is really one of us, cheating and lying like the rest of us, as he knows, and (crucially) as he also knows that we know. 

At his best, it is that disbelieving twinkle in his eye as he utters the latest ludicrous promise (forty new hospitals! a tunnel to Northern Ireland!) or lie (no trade barriers whatsoever!), that detachment from himself as he plays the role of leader for the cameras, that has consolidated his grip on enough of the electorate for him to count as highly successful.  It helps too to have policies that work for closet and explicit racists, the rich who fund his Party, and the foreign media bosses who propagandise for him in their newspapers. Johnson has never taken a brave political decision in his life.  Whether it is to a wife, a girlfriend, a political associate or the public, Johnson lies to please – with the goal of pleasing himself.

But is the spell still working? Boris Johnson’s grip on office is clearly loosening by the day and if he is gone or nearly gone by the New Year it will have been a combination of Tory mistrust and establishment retaliation that will have seen him off, albeit both will still need to be propelled by a collapse in public esteem which at the time of writing has not – yet – holed the Prime Minister below his political waterline. 

Tory mistrust is easy to understand; by all accounts Mr Johnson’s only claim to their loyalty has been his capacity to win their elections for them.  His lack of any deep relationships rooted in mutual loyalty is becoming an increasingly evident weakness, and very different from John Major who attracted (and retained) intense personal loyalty.  For its part, the ‘establishment’ currently ensnaring Johnson is surprisingly new, a creature of changes wrought by the Major and Blair administrations rather than something with us from the time of Bagehot.  The Nolan principles were Major’s riposte to his problems with sleaze, and ethics watchdogs and standards advisers and so on have in the years since become a central part of governing in Whitehall. In 2015, the then ‘Director General Propriety and Ethics’ Sue Gray was memorably described as the ‘most powerful civil servant you’ve never heard off’.  These are the people that Johnson now strives to shake off, the Alex Allan’s (resigned), the Lord Geidt’s (in post but at the time of writing considering his position) and the Kathryn Stone’s (hanging in there).  He wants to reshape public discourse in his own image, returning to a time when prime ministers enjoyed the fruits of office without the cares of accountability, a new Walpole perhaps (Robert, not Horace – you have to go back a long way to find a Prime Minister as willing as Johnson to trample on public rectitude for personal advantage).

There is a wider dimension to this, as there was in the mid-1990s.  I wrote about this aspect to the sleaze crisis in ‘The Party in Government’, an essay for the London Review of Books that appeared in March 1995:

‘The corruption of this long era of Conservative rule extends beyond personal venality.  Though loudly committed to the rule of law, especially when it meant ruining the unions in the early Eighties, the Government has found its own actions frequently castigated as unlawful in the British courts, and pilloried in Strasbourg for the infringement of human rights.  Its response has been to contrive legal ruses the effect of which has been often to place it quite literally above the law.  The contempt towards one great limb of the British Constitution has been matched by the scorn it has shown towards another for which it has also affected respect.  The Government’s cynical control of the Commons and its contemptuous disregard of the Lords have allowed it singlehandedly to turn Britain into the impoverished and unequal national that it now finds itself to be.’


During his still brief time in office, Johnson has gone much further than his predecessors, exposing as empty such supposedly entrenched aspects of the unwritten constitution as the imperative of insulating the Queen from politics (the unlawful prorogation of parliament), and the importance of respecting the will of the devolved legislatures (the Sewel Convention). He has deepened the usual Tory threats to destroy the BBC while seeking to place his own creatures in positions intended to be independent (Paul Dacre a recent (failed) example; William Shawcross in charge of the Prevent review; the Brexiteer Gisela Stuart as civil service commissioner).  His government has proposed changes to the electoral law that will both make its retention of power easier while at the same time stripping the electoral commission of many of the powers of oversight that it currently enjoys and of which recently he has been a target (the refurbishment of his flat in Downing Street).

The most recently opened fronts are against the rule of law and human rights.  The Justice Secretary Dominic Raab wants to emasculate the Human Rights Act (one of the Blair administration’s most important achievements) and the government appears to have recently hinted at a power to overturn specific rulings of the courts of which they disapprove and/or which they judge inconvenient. Perpetually mocked by Johnson’s English administration, Scotland’s threat to secede may soon come to fruition, while Northern Ireland’s constitutional right to clear off into the Republic of Ireland gathers support by the day (north of the Border anyway).  I never thought that the weaknesses that have been obvious in the UK’s unwritten constitution that I have been teaching for decades would eventually destroy the country – but that does appear to be what is happening under Johnson’s watch.  Here is a far deeper malaise than any experienced in the 1980s.

Will the Johnson project succeed?  Its weakness is the same as that which dogs all populists: the only coherent policy it possesses is the accumulation of power for its own sake, not for any particular purpose. Johnson and his gang are fast running out of people they can blame for their indecision, indirection and vacuity on everything except their own interests and the retention of their own power.  There are clear signs that that section of the public once so mesmerized by Johnson are tiring of him.  Freed of their dependence on him for their seats, the wrath of the scorned Tory MPs will be compelling to watch.  The quiet guard dogs protecting the constitution may finally manage to bite as well as bark.  But unless the downfall of Johnson precipitates dramatic constitutional change – proportional representation; a formalisation of checks and balances; a clamping down on the influence of money in politics; a reckoning with the country’s colonial past – we will be once again back where we are now before too long, the constitutionally ‘impoverished and unequal country’ that I wrote about twenty-seven years ago.