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A Postmodern Bill of Rights

One of the darker aspects of Brexit was the Tory Party’s thinly veiled ambitions to repeal the Human Rights Act. At the time, I asked to which of the rights enshrined in the European Convention of Human Rights people objected or felt did not really require protection. Whilst the undermining of human rights was one of many seemingly obvious outcomes dismissed as “Project Fear”, Dominic Raab’s appointment as Secretary for State for Justice last year was immediately concerning for those in the legal profession, with his outspoken opposition to the Human Rights Act, saying in 2009 that “The very enactment of the Human Rights Act has served as a trigger for the formulation of claims by lawyers and judicial reasoning by courts, using human rights arguments that would never have been dared before. The spread of rights has become contagious and, since the Human Rights Act, opened the door to vast new categories of claims, which can be judicially enforced against the government through the courts.”

Yes, the passing of the Human Rights Act has meant that citizens have dared to enforce their rights against the Government. That is ultimately what Raab wants to limit. We now have insight into exactly what the Government intends to achieve with its “Modern Bill of Rights” following the Consultation Response. I know these can be (often deliberately) dense documents to look at, so I want to highlight a few key points to make their intentions entirely transparent, as well as how they are ignoring the public response. This requires serious Parliamentary scrutiny, as the Government seeks to rework the most fundamental protections for us all.

The will of Parliament

Remove the courts’ power to interpret legislation in ways that are not in line with the ordinary meaning of the words and the overall purpose of the statute, which will ensure that laws will be interpreted in a manner that is consistent with the will of Parliament.

The sovereignty of Parliament was a popular Brexit catchphrase, used primarily by people who do not understand Parliamentary sovreignty. I agree with the view that the courts should not be making judgments that are incompatible with legislation passed by Parliament, but it was Parliament which enacted the Human Rights Act. Section 19 of the Act requires that all subsequent bills include a statement from the responsible Minister that it is compatible with Convention rights. This was a deliberate choice by Parliament, recognising that no legislation we pass in a civilised society should contravene human rights. Therefore the court is empowered by section 3 of the Act to interpret legislation in a compatible way and, since this was enacted by Parliament, it is by definition consistent with the will of Parliament.

The Government wants to remove this section 19 statement from new legislation because “This will encourage innovative and creative policy making which better achieves Government aims.” In other words, they expect their future legislation to contravene human rights and so they do not want to be bound by it or forced to identify their disregard for human rights when they choose to ignore it. Nor do they want the court to be able to set aside incompatible legislation. Repealing section 3 of the Human Rights Act met with overwhelming disapproval. 79% of respondents wanted no change to the courts’ ability to interpret legislation in accordance with the Humans Rights Act, and only a dismal 8% supported either of the Government’s proposed options. The Government took no notice.

The Government remains convinced that reform of section 3 is needed to provide a clearer separation of powers between the courts and Parliament. We therefore intend to repeal section 3.

Public authorities

Make clear that when public authorities are giving effect to the will of Parliament, they will not be acting unlawfully under the Bill of Rights. This will deliver greater certainty for public services to do the jobs entrusted to them, without the constant threat of having to defend against human rights claims.

This is perhaps the most insidious statement in the document. Public authorities will be immune from claims that they have violate human rights if they are “giving effect to the will of Parliament”. Who decides whether they are doing so? If the sitting Government orders the police to round up protesters, does that grant them free rein in how they act? Is it enough for the police simply to say in all circumstances that they are enforcing a criminal statute passed by Parliament and therefore cannot have acted unlawfully even if they violate your human rights? Frankly, the “constant threat” of human rights claims sounds like an excellent safeguard for public services, particularly those institutions like the police force which have proved themselves time and again incapable of ensuring proper treatment of minorities and the vulnerable.

The role of the European Court of Human Rights

The UK was instrumental in establishing the European Court of Human Rights, based in Strasbourg, following the creation of the Council of Europe in London. International law scholars consider it to be the most effective international human rights court in the world, so one might wonder why the British Government would so keen to abandon it.

The ambiguity of the instruction to ‘take into account’ Strasbourg case laws remains a source of uncertainty. In the consultation, we proposed correcting this by promoting a home-grown approach tailored to the UK’s traditions of liberty and rights.

56% of respondents preferred no change from the current framework, and a further 20% rejected the alternative options put forward in the consultation. Of course, many of the respondents knew exactly what was motivating the Government: “1,270 respondents also mentioned that the Strasbourg Court ensures that the UK Government is kept in check”. Once again, the Government’s response is simply to ignore these criticisms.

The Government wants to emphasise the importance of the development of rights under the common law. This would contribute to placing less emphasis on the role that decisions of the Strasbourg Court play in influencing UK courts.

Triviality

The Government believes that human rights provide fundamental individual guarantees in society, but that trust in that system is lost when trivial cases come before the courts.

What exactly is a “trivial” breach of your fundamental human rights? The Government wants to prevent people from even bringing a challenge if they cannot demonstrate they suffered a “significant disadvantage”. But when we are dealing with something so profoundly important as the basic protections that should be afforded to every human being, why is any threshold test appropriate? Surely you should simply not have violated their human rights to begin with. The Consultation demonstrated this overwhelmingly, with 90% of respondents saying the proposed “significant disadvantage” test was not appropriate. 25% of respondents went further and said there was no evidence that the system is being abused or that spurious claims are being brought.

The Government’s response?

The Government remains convinced that introducing a permission stage is necessary to ensure that trivial claims do not undermine public confidence in human rights more broadly but has amended the proposal based on further policy development and analysis.

This proposal will place responsibility on the claimant to demonstrate that they have suffered a significant disadvantage before a human rights claim can be heard in court.

In other words they have completely ignored the response to the Consultation and their “amended” proposal introduces the same “significant disadvantage” test that was rejected by 90% of respondents. It is entirely transparent that the Government wants to prevent claims from even being heard in Court, and is determined to force this through despite public opposition.

Deportations

The recent Rwanda debacle demonstrates the Government’s general contempt for the human rights of those it wishes to deport. Indeed, the only people for whom it seems to have more contempt are the “lefty lawyers” protecting those human rights. 82% of respondents rejected alternative options to make it easier for the Government to deport foreign nationals who committed offences in the UK and 67% said no change was required to the current framework for illegal and irregular migration.

In a pattern you will recognise by now, the Government intends to proceed regardless. This includes setting a high bar for foreign nationals to claim deportation infringes on their right to respect for private and family life, making it easier for the Government to separate families, and placing “limits on the court’s power when they are considering appeals against deportation made on Article 6 grounds (right to a fair trial)”. Meanwhile, they doubled down on the Nationality and Borders Act 2022, stating that they had “considered in detail the issues raised in this area” whilst carefully avoiding any mention of the failed attempt earlier this month to deport asylum seekers before their challenges could be heard.

The FACT Charter

According to numerous publications on both sides of the Atlantic, we live in a “post-fact” society. The creep of cognitive bias has reached such heights that the truth is no longer powerful enough to strike down a false argument. It is evident in Brexit, where politicians campaigned on the basis of outright lies about welfare tourism, healthcare funding and more. The furore over Thursday’s High Court decision on the requirement for Parliamentary approval before invoking Article 50 demonstrates that, for all the principled talk of restoring Parliamentary sovereignty, what campaigners apparently meant was unchecked Government power.

It is perhaps more evident in the support for Donald Trump, who is comfortable denying that he has said things when a cursory Google search will provide video evidence. This American Life aired a troubling show recently demonstrating just how entrenched political belief has become — it is no longer simply a viewpoint but an identity.

Can facts actually survive this onslaught or are they now irrelevant? Much of the shift came from us and particularly our use of social media. Our friendship groups mean our interactions tend to exist in an echo chamber in which we are exposed only to similar viewpoints to our own. This is part of the reason that I think the Brexit vote came as such a shock to many. This is coupled with the easy carelessness with which information is now shared, meaning that misinformation spreads just as rapidly. We complain about newspapers hiding their retractions after lazy journalism but individuals can be just as bad. All this is to say that we can change a lot by changing how we approach social media.

20161104-brain

I am proposing a short recommended checklist for posting articles that I am going to call The FACT Charter because I am not feeling particularly creative. However, it does sport a helpful (one might say contrived) mnemonic.

  1. Fact-check before sharing or reposting
  2. Assess critically for bias
  3. Challenge your friends
  4. Think out loud

Fact-check before sharing or reposting

This is really the crux, as it becomes ever-easier to share articles in just one or two clicks. It is equally easy to view it as someone else’s article and abdicate blame for any errors but, like it or not, by sharing that article you are essentially becoming a publisher, widening the circulation of that story. You do not have to start from scratch: see whether the source material is a reputable news outlet or some guy’s blog; check that a study’s conclusion actually says what the writer claims. If it turns out to be untrue, that’s okay: you’ve still gained another data point.

The argument that it would be too time-consuming to check the source is essentially saying that your time is worth more than that of your friends reading it. If you don’t have time, wait. At the very least, point out clearly that you’ve not checked the underlying information.

Assess critically for bias

There is no such thing as neutral journalism but bias varies dramatically. Often a strong opinion piece is warranted and worth sharing. But equally it can be lazily convenient to share a partisan article that aligns with our beliefs but does not really provide a particularly nuanced or balanced view. Look for something more neutral and — if you feel less inclined to post that version — assess why you are sharing it. A separate recommendation is regularly to read a news source with a conflicting viewpoint to your own, to ensure yours is being challenged and not simply reinforced in isolation.

Challenge your friends

Our friends keep us honest. Not every post has to turn into an argument, of course, but if friends post stories that seem suspect to you, ask them for the evidence behind it. Ignoring it is a doing them a disservice.

Think out loud

Provide your own commentary when sharing articles, highlighting what you have taken away. It forces you to engage with the content rather than just a knee-jerk share because of a headline seeking a viral audience. It may be the best way to reduce the effectiveness of click-bait headlines (which incidentally, will only go away if we make a concerted effort not to click on them whenever we spot them). If nothing else, your commentary will encourage a dialogue which is always more interesting.

Let’s make facts great again!

"Luck is the residue of design."

(CC) BY-NC 2004-2022 Priyan Meewella

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