Suella Braverman: The abuse of human rights, the long tail of Blairism, the corrosive role of Strasbourg – and what we will do about it
Suella Braverman is Attorney General and MP for Fareham.
We have a rich heritage of rights in the UK. Although we have failed at times, a belief in equality has been persistent enough in our culture that we have always had loud voices asking us to make amends – as in the case of slavery. We now have a wide range of rights for people who work in factories, construction sites, drive heavy goods vehicles and work at night. We have passed anti-discrimination laws on disability and gender. We are now rightly entitled to compassionate care leave, paternity leave, maternity leave and shared parental leave.
But there is now a serious risk that a blind approach to rights in certain areas will harm the general balance of rights in society. The judicially extended European Convention on Human Rights and the New Labor Human Rights Act marked a sea change in the way fundamental rights are protected in the UK, with alarming constitutional and practical consequences .
We now have a “culture of rights” in a way that didn’t exist before 1998 — and it has caused confusion and distress in some areas. In my opinion, 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 a way that did not correspond to the intentions of the signatories. The doctrine hides the uncertainties of human rights behind the so-called certainties of judicial decision-making.
In his Reith Lecture, Lord Sumption observed that by interpreting the Convention as a living instrument, the Strasbourg Court recognizes rights which the States did not intend to grant and which fall outside the object and of the original purpose of the Convention. This is contrary to legally binding standards of treaty interpretation. This is why he called the Convention a “dynamic treaty”. In his own words, the result is “to transfer essentially legislative power to an international body standing outside the constitutional framework of the United Kingdom”.
The Strasbourg seat is made up of judges from continental legal systems accustomed to operating without a formal doctrine of binding precedent. This means that their habit is to force the “right” outcome in the case – even if that means forcing the law – with less emphasis on how this case will influence future cases. Associated with the living instrument doctrine, the Convention has expanded rapidly and unpredictably. As Lord Hoffmann said, this meant that the Convention was given meanings “which could not have been intended by its subscribers”.
Striking examples of the real impact of the living instrument doctrine include the expansion of Article 8, the right to respect for private and family life. The Convention originally conceived this right as a protection against excessive government intervention in family life — such as arbitrary searches of homes by the police — as a direct reaction to authoritarianism. However, this right has been radically extended today.
Take the case of a Nigerian national – referred to as OO by the court – who was sentenced in 2016 to four years in prison for offenses including possession of crack cocaine and heroin with intent to supply, then pleaded guilty in 2017 for assault and battery. In 2020, the Magistrate’s Court allowed his appeal against deportation on the grounds that OO’s “very significant obstacles” to integration in Nigeria outweighed the public interest in his deportation, despite the seriousness of his deportation. his offence, and that the expulsion was irreconcilable with Article 8 (the right to respect for private and family life). The Upper Tribunal upheld this decision on appeal.
After a series of conflicting decisions from the Strasbourg Court, additional procedural burdens have been created by our Supreme Court in AM (Zimbabwe) v Home Secretary in 2020. States wishing to deport someone must now prove that the facilities Medical facilities made available to the deportee at their home in the country would eliminate any real risk that their lifespan would be shortened by the removal of NHS facilities. When a person is deported from a developed country to a developing country, this will often be the case. This places an increased burden on our national resources and expands the concept of ‘fundamental rights’ beyond what was originally intended.
In short, the Strasbourg Court acted to thwart certain aspects of our national policy on illegal migration. This conclusion is well demonstrated by the authority study for Policy Exchange by John Finnis and Simon Murray, and strongly supported by Lord Hoffmann.
When the Human Rights Act came into force, national courts were empowered to oversee the protection of rights and adjudicate decisions made by Parliament and the government on how best to act. At the time, considerable effort was made to train judges in this new framework of rights and its interpretation.
This created a direct route for Strasbourg’s methods of interpretation to permeate British judicial reasoning. The intensive standard of proportionality under human rights law – 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 couldn’t have taken it) – turned out to be problematic. A clear example relates to its use of Convention rights as defenses against criminal damage charges.
In the Ziegler case, the UK Supreme Court overturned the convictions of several protesters for deliberately obstructing a motorway. She held that in light of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the Convention, protesters can invoke a “lawful excuse” for deliberate behavior of physical obstruction, even if it prevents other users from exercising their rights to pass along the highway.
In the Colston statue case, the trial judge told the jury that before they could convict him of criminal harm, the jury had to be sure it would constitute “proportionate interference” – in other words consistent – with the exercise by the accused of their human rights. The legal uncertainty that these cases illustrate prompted me to submit questions of law to the Court of Appeal.
These issues relate to the appropriate scope of defenses to criminal charges arising from demonstrations and the instructions that should be given to jurors in such cases. My dismissal will not overturn the acquittals in this case, but the backlash I received for simply dismissing — on a point of law! – shows how many of these issues have become politicized and inflamed precisely because they have been removed from the political arena and placed in unassailable courtrooms. There was at least one other voice of reason in this media storm: retired Old Bailey judge Charles Wide. His political exchange paper made it very clear that there was a compelling case for dismissal. We await the decision of the Court of Appeal.
The human rights law reforms introduced by this government will bring welcome predictability to these imported and vague human rights standards. They will prevent trivial human rights complaints from wasting judges’ time and wasting taxpayers’ money by introducing an authorization stage in the courts, requiring claimants to prove that they have suffered significant harm before their complaint can proceed. They will also reinforce in law the principle that responsibilities to society are as important as personal rights by ensuring that courts consider relevant conduct of a plaintiff, such as criminal behavior, when awarding damages- interests.
Regardless of which side of the debate one takes on the scope of fundamental rights and what the law should be, the main and legitimate vehicle for resolving disagreements is parliament. The reason is simple 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 provide clear answers to these questions.
This article is based on a speech the Attorney General gave yesterday at Policy Exchange.