PROFESSOR RICHARD EKINS: Human Rights Act undermines democracy

PROFESSOR RICHARD EKINS: Endless bids to halt Rwanda deportations are yet more proof that the Human Rights Act undermines democracy

The Human Rights Act has been part of our law for more than two decades. But I’m sorry to say it is a blot on our democracy and Parliament should repeal it now – or at the least amend it sharply.

The problem is not that human rights and democracy are incompatible. Of course not.

Every decent political community takes rights seriously, recognising limits on what we can reasonably do to one another while enabling each person to be free and to flourish where possible.

But this does not mean decisions about how best to protect human rights should be made by courts.

The problem with the 1998 Human Rights Act, the brainchild of the Blair government, is that it turns political questions about what the law should be, decided by Parliament, into legal questions for the courts settled by unelected judges.

As the current controversy over the Government’s Rwanda deportation policy shows, the clearest example of this is with immigration and asylum. It is an area where for many years governments have found it very difficult to impose their will.

One main reason for this is that the Human Rights Act allows failed asylum seekers or foreign criminals, among others, to argue that deportation would breach their right to a family life, for example, and so they are entitled to remain.

It is true that the Government’s Rwanda plan – under which refugees who arrive in the UK illegally will be sent to east Africa to claim asylum – survived its first legal challenge last week. But this is not the end of the story.

On Friday, the High Court decided not to ground the Home Office’s first deportation flight to the capital, Kigali, at least not before a full hearing had been held.

This interim decision is being appealed and, in any case, the main challenge has yet to be heard.

So the fate of this flagship policy to address the crisis in the Channel remains with the judges, who may yet decide to grant future injunctions sought by campaigners and their legal teams.

Protesters hold a banner saying ‘Stop Deportations to Rwanda’ as they march along Regent Street on June 11, 2022 in London, England

Demonstrators protest outside the Royal Courts of Justice, whilst a legal case is heard over halting a planned deportation of asylum seekers from Britain to Rwanda, London, Britain, June 10, 2022.

In some ways, this is the Government’s own fault. It could have asked Parliament to enact legislation that would clearly require the Rwanda plan to go ahead despite the Human Rights Act.

But even if Parliament had legislated to implement the Rwanda plan, this legislation would itself inevitably have been challenged.

For the Human Rights Act invites lawyers, individuals and lobby groups who are unhappy with government policies to try to undermine them by mounting challenges in the courts.

The Act is a powerful piece of legislation because it gives such groups the opportunity to argue in UK courts that our laws breach the European Convention on Human Rights (ECHR), the international treaty signed by 43 countries – including the UK in 1950 – which is entirely separate from EU law.

The significance of the Act, as the judges often acknowledge, is that the balance of power between Parliament and the courts has shifted decisively towards the judiciary.

It is true that some judges have been better than others in exercising their new responsibilities.

Under Lord Reed’s leadership, as opposed to Lady Hale’s, the Supreme Court has corrected some recent excesses, showing more respect for the responsibilities of ministers and Parliament. But problems remain.

It is not only in the field of immigration that the Human Rights Act has been significant. It has helped drive the cycle of unfair investigations and reinvestigations that some UK military veterans have endured in recent years.

Meanwhile, laws banning the obstruction of roads and railways have also been undermined by the Human Rights Act, with ‘a right to protest’ even being raised as a defence against charges of criminal damage.

The former Supreme Court judge Lord Sumption has been at the forefront of those arguing that the Human Rights Act is a danger to democracy, handing over decisions that ought to be political to judges.

As he put it in his 2019 Reith Lectures, the fudge of political compromise is a much better way of resolving our disagreements than the black and white decisions of a court, however attractively clear-cut they might seem.

For defenders of the status quo, the Human Rights Act is a clever balance between human rights law and parliamentary sovereignty. The idea, as they see it, is that we can have judicial protection of human rights without abandoning Parliament’s final authority.

But this balancing act is not easy and in practice it often fails. The effect of the legislation has, predictably, been to encourage parliamentarians to defer to judges, whether British or European, in a range of contexts.

It would be different if ‘rights’ were clear and specific and could be upheld without controversy. But this is not the case because of the approach the European Court of Human Rights takes.

The Strasbourg Court takes itself to be free to change what human rights means over time. It has in effect invented a new European law of immigration, frustrating states from maintaining their own border controls or from being able to remove unlawful migrants, including failed asylum seekers.

The 1998 Human Rights Act is what gives the ECHR effect in UK law. Sometimes the role of the British judge under the Act is simply to figure out what the Strasbourg Court has decided and to give effect to this. But often the UK court has to decide for itself how rights should be understood and what the law should be, which – in our constitutional tradition – has been a matter for Parliament rather than the courts.

Protestors stand outside The Royal Court of Justice in London, Friday, June 10, 2022

 The Government’s Rwanda plan – under which refugees who arrive in the UK illegally will be sent to east Africa to claim asylum –  survived its first legal challenge last week (Home Secretary Priti Patel pictured)

The 1998 Act enables courts to interpret legislation unreasonably, contradicting the will of Parliament. It allows judges to simply condemn Parliament’s lawmaking choice, which brings political pressure to bear to change the law.

It is not the judges’ fault – they did not enact the 1998 Act and unless and until Parliament repeals it they have no choice but to consider these challenges to law and policy.

The prospect of legal challenges on human rights grounds distorts policy-making and lawmaking. Its effect is to prevent ministers and MPs from reasoning freely about what should be done, which undermines parliamentary democracy.

Repealing the Human Rights Act would prevent those who are defeated in the political process from continuing their political campaigns in the UK courts.

It would restore the constitution as it stood for centuries before the Act, in which it was for Parliament freely to decide what the law should be, with courts standing ready to give effect to its decisions, not to second-guess them. Parliament should not outsource responsibility for lawmaking to courts.

The Government is attempting to respond to these concerns by proposing a modern Bill of Rights. In this, it aims to restore parliamentary democracy. However, without considerable care, the proposals might do more harm than good.

The point of repealing and replacing the Human Rights Act should not be to empower British judges as opposed to European judges.

The point should be to limit the opportunities for UK courts to challenge Parliament’s and therefore the people’s decisions in a democracy about what the law should be.

It is Parliament that should take responsibility for deciding what protections are required in relation to immigration and asylum, and much else, rather than surrendering its role either to UK or the Strasbourg courts.

It is my view that the Human Rights Act wrongly privileges the moral views of judges. It promises the rule of courts rather than the rule of law.

lRichard Ekins is head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government at the University of Oxford

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