The Economist March 12th 2022 Britain 49Brexit:thesequel
R
ussian oligarchsmake good villains. They are rich, powerful
and foreign, and their money is sometimes illgotten and pret
ty much always inyourface. After Russia’s invasion of Ukraine,
mps called for speedy sanctions against those of them who were
close to Vladimir Putin. When this took longer than in other Euro
pean countries, the Conservative government resorted to blaming
another favourite bogeyman: humanrights legislation.
Crafty lawyers delaying sanctions provided the perfect ammu
nition for a government that was already set on overhauling Brit
ain’s humanrights regime. The government has proposed scrap
ping the Human Rights Act (hra) and replacing it with a Bill of
Rights. Britain would remain a member of the European Conven
tion on Human Rights, which the act incorporates into British law.
But judges would be encouraged to settle cases without referring
to the convention, in the hope that this would make it easier to de
port people, say, or stop forced marriages. For a glimpse of how
this will work out, compare it to Britain’s most recent attempt to
alter its relationship with another panEuropean institution: the
European Union (eu).
Just as Conservative mps spent decades campaigning to leave
the eu, so too have they spent years moaning about the hra. Bin
ning it has been Tory policy since 2006. In both cases, tabloids in
flamed sentiment. Stories of Brussels bureaucrats interfering in
trivia such as the curvature of bananas were common. So too,
when the hracame into force in 2000, were tales of foreign crimi
nals wriggling out of deportation. Outright fabrications were rare.
Most of the stories contained a kernel of truth, making them hard
er to dismiss. Human rights do allow people who have done bad
things to avoid deportation if it would ruin their children’s lives.
And obviously the world’s biggest single market has rules on the
sale of the world’s secondmost popular fruit.
In both cases, advantages were and are ignored. There was little
credit to be gained in Tory circles by saying nice things about the
eu. The hra, for its part, had the misfortune to come into force as
a Labour government was going through an enthusiastically illib
eral phase, pledging to detain terrorist suspects without charge for
months. It quickly gained the reputation of being a terrorists’
charter. If the timing had been different, so too might have beenitsimage.Itwasthankstothehra that the families of 96 football
fans who died in the Hillsborough disaster in 1989 finally secured
a proper inquest more than two decades later. It concluded that
deaths earlier ruled accidental had in fact been unlawful.
Instead the hra, like the eu, became a whipping boy. Govern
ment sources were quick to blame “humanrights law” for slug
gishness in imposing sanctions on oligarchs; they did not explain
how governments in the euhad moved more swiftly, despite be
ing covered by the same convention. A lack of preparation for
longexpected measures was a more likely culprit. Ministers used
to hide behind eulaw in a similar fashion. Inconvenient de
mands, such as to remove sales tax from heating bills, would be re
fused by citing eulaw. Now such excuses are gone.
Critics of the hra do have a point. So much nonsense is written
about humanrights law that genuine concerns are dismissed. At
the time of the hra’s introduction, newspapers—from tabloids to
broadsheets—worried it would create a privacy law, for the entire
ly selfish reason that it would make snooping into people’s lives
harder. They were right. A thousand years of common law had not
produced such a right in Britain; only after the introduction of the
hradid one evolve in successive court cases. Depending on your
viewpoint, it is either a longoverdue correction of a disgraceful
omission, or a lamentable invasion by an alien principle. Either
way, it is a huge shift.
In both cases, however, fear of change to the status quo is over
blown. Brexit was sometimes, absurdly, portrayed as the collapse
of the Western alliance. Likewise, the convention is painted as a
bulwark standing between “Weimar Britain” and the rise of tyran
ny. This rings hollow, since both Turkey, a borderline autocracy,
and Russia, whose government murders its citizens and invades
its neighbours, have signed. As Jonathan Sumption, a former su
premecourt judge, has argued, the convention is most influential
where it is least required, and ignored where it is most needed.
The proper question, in both cases, is whether change is worth
while, or simply too much trouble for too little potential gain. Brit
ain may have left the eu in 2020. But the Conservatives have barely
used their hardwon regulatory freedom. The situation with hu
manrights reform is similar, as politicians struggle to say what
Britain would do under a different humanrights regime that it
cannot do now. In briefings, political advisers describe proposals
reminiscent of the plots of a comicbook villain to deal with peo
ple crossing the Channel in small boats, from holding them in
centres in Albania to deploying wave machines. Not just illegality
impedes such plans; impracticality and immorality do, too. Human rights, wronged
As with Brexit, plans to overhaul the hraare a displacement activ
ity. Why bother reducing a 60,000strong backlog of court cases
waiting to come to trial, or renovating Britain’s crowded and un
healthy jails, when a minister can wave a new Bill of Rights? In the
same way, Brexit was a distraction from Britain’s real troubles,
which include slow growth and gaping inequality between Lon
don and the regions—and were not caused by the eu.
If the government continues down this road, everyone will be
unhappy. Humanrights campaigners and lawyers will be ag
grieved that a functioning system has been ripped up without
good reason. Meanwhile those who reject the very idea of such a
convention will be dissatisfied by anything short of abolition.The
final similarity between replacing the hra and leaving theeuwill
be a result that disappoints both supporters and opponents.nBagehot
The Conservatives’ planned overhaul of human-rights law has the same flaws as leaving the eu