MPs DO have means of breaking stranglehold human rights lawyers have

DR MICHAEL ARNHEIM: MPs DO have a legal means of breaking the stranglehold human rights lawyers have on our democracy. So why won’t they use it?

The scene is only too familiar. The Government announces a robust popular policy to combat illegal migration, terrorism or disruptive protests.

The self-styled ‘human rights’ lobby works itself into a frenzy. The policy is barely implemented before it is challenged in court. The Government is confronted with yet another legal defeat.

A minister expresses ‘regret’ at the decision, coupled with a determination to appeal. And so the vicious cycle repeats itself. At each appeal, the Government presents itself with a large sign on its back reading: Kick me!

I have been sounding the alarm on the state of human rights law in Britain since 1988. I have written extensively on the subject, and have just published a report, Fixing Human Rights Law, for the Civitas think-tank, discussing precisely this issue.

In my report, I warn the rule of law in Britain has increasingly been replaced by the rule of lawyers and judges — and that this has profound consequences for our democracy.

I have been sounding the alarm on the state of human rights law in Britain since 1988. I have written extensively on the subject, and have just published a report, Fixing Human Rights Law, for the Civitas think-tank, discussing precisely this issue, says DR MICHAEL ARNHEIM (pictured)

In my report, I warn the rule of law in Britain has increasingly been replaced by the rule of lawyers and judges — and that this has profound consequences for our democracy (pictured: High Court and Court of Appeal, London)

Instead of protecting the broad mass of law-abiding citizens, as it should do, human rights law increasingly benefits a motley assortment of special-interest groups. 

These include illegal migrants, unproven asylum seekers, terrorist suspects, disruptive protesters, strikers and various beneficiaries of politically correct, wrong and unjust court decisions.

But I don’t blame the judges for this. Parliament’s torpor when it comes to human rights law has created a vacuum in the law which judges have often felt constrained to fill.

A good example of this has just come to light. Former defence secretary Ben Wallace was reported yesterday as warning that human rights laws put national security at risk. True. 

But blame must be placed squarely on the shoulders of the Government and Parliament. Why didn’t Mr Wallace make this point while in office, when he could have done something about it?

The Government purports to have adopted a ‘tough’ approach to illegal migration. The sight of Rishi Sunak standing in front of a sign reading ‘Stop the Boats’ is enough to make one cringe. Illegal small-boat arrivals amount to around 45,000 a year, compared with more than a million illegal migrants already in the country.

A good example of this has just come to light. Former defence secretary Ben Wallace (pictured) was reported yesterday as warning that human rights laws put national security at risk

But beneath this ‘tough’ exterior lurks a pusillanimous soul afraid of its own shadow.

A different response is called for: not endless Government appeals, not endless political posturing, but ‘revocation’.

Even if they have heard of the power of revocation, most Government ministers are evidently too afraid to use it.

So what is it? Far from being some arcane power, revocation is an integral part of the sovereignty of Parliament, the bedrock principle of the British Constitution and the bulwark of our democracy.

READ MORE: Human Rights laws force military chiefs to KILL suspects with drones or leave them plotting – because detaining and extraditing them is too difficult ex-Defence Secretary Ben Wallace says

It has been said that ‘Parliament can do anything except turn a man into a woman or a woman into a man.’ Revocation is simply the cancellation by parliamentary statute of a decision of any UK court, including the Supreme Court. As it is an exercise of Parliament’s sovereign power, no reason need be given.

The recent spate of anti-Government judicial decisions cry out for revocation, and none more so than the Court of Appeal’s decision three months ago on deportation to Rwanda. The case involved ten single men who, having arrived in the UK irregularly in small boats, claimed asylum and were then ordered by the Home Secretary to be removed to the African country.

Two judges in the High Court and the Lord Chief Justice in the Court of Appeal found in favour of the Government, but two judges in the Court of Appeal, outvoting the Lord Chief Justice, held the Government’s policy of deportation to Rwanda to be unlawful. 

How come two judges trumped three, including the Lord Chief Justice? Because the two formed the majority in the Court of Appeal.

I believe it was the three trounced judges who got the law right. Here’s what Lord Chief Justice Burnett held: ‘Rwanda is a safe third country.’ It followed that the Home Secretary’s policies were ‘not unlawful’. 

In the High Court, Mr Justice Swift, the Head of the Administrative Court, made the trenchant point that the risks posed to refugees sent to Rwanda were ‘in the realms of speculation’.

This highly controversial and far-from-unanimous Court of Appeal decision is crying out for revocation. Yet the Government has lamely indicated that it will appeal against it to the Supreme Court, inviting a hiding from yet another group of unelected, unaccountable and virtually irremovable judges.

I believe it was the three trounced judges who got the law right. Here’s what Lord Chief Justice Burnett held: ‘Rwanda is a safe third country.’ It followed that the Home Secretary’s policies were ‘not unlawful’

The radical disagreement among the senior judges in this Rwanda case only underlines the degree of disarray in the law. For this I do not blame the judges, but the Government and Parliament. 

For years, a few upstanding and principled judges have begged Parliament (through the Government) to step up to the plate, accept its responsibility as supreme law-maker, and pass legislation, particularly in controversial areas.

Parliament has never responded to these earnest entreaties. The serious invasion of privacy in 1990 of the popular television actor Gorden Kaye is a case in point.

READ MORE: Rishi Sunak says he ‘fundamentally disagrees’ with Court of Appeal ruling as judges find deporting asylum seekers to Rwanda IS unlawful: PM says criminal gangs should not decide who comes to UK as he reveals Supreme Court appeal bid

While recovering in hospital from emergency brain surgery for life-threatening injuries, he was interviewed and photographed by two journalists from a red-top newspaper posing as doctors. As English law contained no right of privacy, the Court of Appeal urged Parliament to legislate to fill this gap.

Parliament did nothing, leaving a vacuum into which the judges have been drawn over the years, making up the law as they went along. Supporters of judge-made law, in this area and others, claim it is in keeping with the rule of law. They are wrong. 

While the rule of law requires the law to be certain, clear and predictable, judge-made law is arbitrary, unclear and unpredictable, and has rightly been described as ‘an unruly horse’.

As it is based on the predilections of individual judges, it results in disagreements between courts and between judges on the same court — and in many ‘yo-yo’ cases, in which one party wins at first instance, loses on appeal and then wins again on final appeal.

So what is the solution? The problem with UK human rights law is serious but not insoluble. As I have suggested in my report for Civitas, a three-step approach suggests itself:

Step 1: The Government should tackle the immediate problem of small-boat and other undocumented arrivals by making it illegal for anyone to apply for asylum from within the UK. Strictly enforced, this prohibition should reduce the number of illegals who risk life and limb in flimsy rafts to get here.

Step 2: The Government should pass legislation clarifying the highly fuzzy human rights law and stipulating how it is to be interpreted by the courts.

Step 3: If need be, the Government must not shirk from reaching for the nuclear but democratic option of revocation, cancelling any objectionable court decision by statute.

The alternative is to watch yet more ministers wearing that ‘Kick me!’ sign — and the human rights lobby continuing to get its undemocratic way.

• Dr Michael Arnheim is a barrister at law, sometime Fellow of St John’s College, Cambridge, and author of 24 published books, including: Fixing Human Rights Law (Civitas) 2023.

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