The Government is enthusiastically pushing ahead with three substantial legal reforms which, in different ways, are likely to significantly increase the power of the state at the expense of its citizens. Some of the proposed measures are being loudly fanfared by the Government as long overdue curbs on the powers of the Courts and the reach of human rights legislation. Other measures are more technical and are progressing with less publicity. Together though, what is proposed should cause urgent concern because, if implemented, the result will be a major increase in the power of the Executive while chilling many of the checks and balances which currently hold ministers to account.
First, the eye catching, and no doubt vote catching, changes to the Human Rights Act. Justice Secretary Dominic Raab has announced a major overhaul of the legislation. The proposed Bill of Rights will introduce a “permission” stage in order, apparently, to counter the current “wokery” pervading human rights jurisprudence. In particular, the Government is targeting foreign offenders to make it easier to deport them.
The proposals are worrying for a number of reasons and whenever Government targets a particular group in the context of human rights law, alarm bells should ring. In this case, the group under attack is, yet again, foreign criminals. Old, recycled, and usually inaccurate stories about sex offenders being allowed to stay in the UK because of a right to family life are being propagated once more. As before, the inconvenient reality of the way in which the legislation actually operates is overlooked in all this. Human rights apply to er… all humans, whether UK nationals or not. But not all rights protected under the legislation are unqualified – the right to family life being one. The right is balanced against the need of the state to detect crime and protect the public for instance. The Government ignores this. The overhaul now suggested appears to be aimed at winning political popularity rather than correcting any flaw in the current law.
Meanwhile, the Government presses ahead with its campaign against judicial review with the Judicial Review and Courts Bill. In this, it is in fact merely picking up where the Labour Government left off. Judicial review has long been a thorn in the side of ministers who resent scrutiny of and challenge to their decisions as a matter of principle, although it is doubtless the resulting inconvenience and embarrassment that really aggravates. The Conservative Manifesto promised to reform judicial review to prevent its being “abused to conduct politics by another means.” No doubt the humiliating judicial defeats sustained during the Brexit process over the operation of Article 50, and prorogation still smarted. The process is ongoing. However, the concern is that any limitation on the courts’ jurisdiction in this area will also limit the ability of the individual, and therefore the public, to hold the Government to account.
Finally there is the Police Crime Sentencing and Courts Bill which is progressing through Parliament with rather less fanfare. Even lawyers have become weary at the sheer volume of criminal legislation over the last two decades, but the detail in the bill is significant. In particular, embedded within various measures regarding sex offenders and protections for emergency workers, are a number of provisions which increase police powers to restrict or prohibit public demonstrations, and which widen the scope of protest activity that would become criminal. These apparently rather technical provisions could shift significantly the balance between the right of the public to demonstrate, and the powers of the police to prevent them.
These changes to the way in which the state exercises its powers, and to the capacity for the public to hold it to account, are potentially extremely worrying. It will take more than a few protests by human rights lawyers to prevent them, but it is essential that they are resisted.