Weekly Update 17 December 2021

Weekly Update 17 December 2021

Dear Friends,

It has been a dramatic week. The UK Government's cavalier attitude to the Rule of Law was partly responsible for the collapse in the Prime Minister's political authority over his own MPs on Tuesday, as almost 100 of them voted against the latest Coronavirus measures, amidst mounting anxiety that the system for making such significant laws in a hurry is no longer fit for purpose. And the growing sense that the Government considers itself above the law, whether on standards in public life or its own Coronavirus restrictions, appears to have contributed to the spectacular haemorrhaging of popular support for the governing party amongst the electorate in the North Shropshire by-election.

It is somewhat surprising, therefore, that during such a week the Government has published proposals for reforming the UK's Human Rights Act which only amplify the impression that the Government considers itself above the law and is determined to change the most important legal frameworks that currently subject it to legal control. In a Consultation Paper that hardly engages substantively at all with the thoughtful and evidence-based recommendations of the Independent Human Rights Act Review led by Sir Peter Gross, which is relegated almost to a footnote by its publication at the same time as the Government's proposals, the Government has chosen to polarise the national discussion about human rights by reviving the evidence-free assertion that the Human Rights Act has undermined our parliamentary democracy by subjecting it to the diktats of the European Court of Human Rights.

The starkest example of the doublespeak that such polarising tactics require is the extraordinary proposal for a "democratic shield" to defend against adverse rulings by the European Court of Human Rights. On the one hand, the Government claims to remain committed to the European Convention on Human Rights and to upholding the UK's international obligations. On the other hand, the Government proposes a legislative provision that affirms Parliamentary sovereignty, to make clear that Parliament "has the last word on how to respond to adverse rulings", and offers a draft clause which provides that "judgments of the European Court of Human Rights ... cannot affect the right of Parliament to legislate or otherwise affect the constitutional principle of Parliamentary sovereignty." Leaving aside whether there is any evidence that such a "shield" is necessary, the contempt for international law on which the proposal is premised is right up there with the clauses in the UK Internal Market Bill that caused the resignation of the Head of the Government Legal Department and a humiliating defeat for the Government in the House of Lords.

The Government will need to explain to Parliament how this proposal differs from Russia's legislation asserting the right of the Russian State not to comply with judgments of the European Court of Human Rights which it considers to be inconsistent with the Russian Constitution - laws which the Venice Commission for Democracy through Law has consistently pointed out are in breach of Russia's obligations under Article 46 of the ECHR to give effect to the Court's judgments and of Article 27 of the Vienna Convention on the Law of Treaties by which States agree that they cannot rely on their internal law as a justification for failure to perform their international treaty obligations.

In the meantime, weary believers in an evidence-based rather than an ideological approach to discussing our human rights framework must gird themselves for another round of proactive engagement with parliamentarians to ensure that the debate is urgently depolarised. The resources for doing so are to be found in the report of the Independent Human Rights Act Review and the evidence and other material that it has very helpfully generated in the course of its work.

You can read the whole Weekly Update here.