London: Britain is preparing to opt out of major parts of European human rights laws, risking an explosive new row with the EU.
Boris Johnson's aides and ministers are drawing up proposals to severely curb the use of human rights laws in areas where judges have "overreached".
Prime Minister Boris JohnsonCredit:Getty Images
Plans under discussion include opt-outs of the Human Rights Act, which could prevent many migrants and asylum seekers from using the legislation to avoid deportation, and protect British soldiers against claims relating to overseas operations. The Act allows British courts to apply the European Convention on Human Rights.
The move sets up a major new confrontation with the EU, which has demanded the UK commits to remaining signed up to the convention, and keep the Human Rights Act in place, as the price of future "law enforcement cooperation" between the bloc and Britain.
The Prime Minister faces a major revolt over his decision to alter the EU divorce deal due to its provisions on Northern Ireland, with Sir Keir Starmer accusing him of "reigniting old rows" over Brexit instead of focusing on the response to COVID-19.
In a piece for the London Telegraph, Starmer seeks to use Johnson's slogans against him, stating: "We should be getting on with defeating this virus, not banging on about Europe. Get on with Brexit and defeat the virus. That should be the government's mantra."
The article suggests that Starmer intends to court many of the voters won over by Johnson's "Global Britain" agenda, in a sign of his determination to part from Jeremy Corbyn's approach. He claims Johnson's approach to the Withdrawal Agreement "risks holding Global Britain back".
Work examining potential opt-outs from the Human Rights Act is being carried out in several Whitehall departments, including No 10, the Ministry of Justice, the Home Office and the Ministry of Defence.
Dominic Cummings, Johnson's most senior adviser, has previously attacked the European Court of Human Rights for judgments, based on the human rights convention, blocking the deportation of "dangerous" foreign criminals.
He has warned that voters would expect the jurisdiction of European judges to end in the UK as part of the Brexit process. The human right convention, and its European Court of Human Rights, are part of a completely different legal system to the EU. They are both part of the Council of Europe, which has 47 member states including Russia and the UK.
The disclosure comes it was revealed in February that Johnson was refusing EU demands to guarantee that the UK would continue to be bound by the human rights convention after the end of the transition period in December.
EU negotiators have been attempting to make future collaboration on law enforcement conditional on the UK retaining the existing Human Rights Act – a demand British negotiators are understood to be continuing to resist.
The Conservatives' 2019 manifesto promised a review of the legislation, stating: "We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government."
The government is expected to announce details of a formal review in the coming weeks. However, work is already under way to examine ways to curb the use of the legislation in asylum cases to avoid deportation, and in legal claims against British troops.
One option is to amend the Human Rights Act or disapply its provisions from new laws, such as the Overseas Operations Bill, which is due to be brought back to the Commons next week. Other options include less radical changes designed to affect how judges interpret the law, rather than changing the substance of the act.
The Overseas Operations Bill creates a "presumption against prosecution" against service personnel after five years, which ministers have said "sets the legal bar for prosecution significantly". It also amends the Human Rights Act to include a specific "duty to consider derogation" from the convention in cases where soldiers are engaged in operations abroad.
However, several senior Tories are concerned that the clause fails to amount to a full opt-out, because it relies on an emergency brake in the convention that can only be triggered in a "public emergency threatening the life of the nation". Ministers are discussing ways to legislate for a firmer opt-out at a later date. Senior government figures want to roll back the influence of the European Court of Human Rights, which several cabinet ministers accused of distorting the 67-year-old European Convention on Human Rights.
In March, Martin Howe, an influential Brexiteer QC, suggested the government use its majority to declare that laws such as those providing safeguards to soldiers would apply "notwithstanding" the Human Rights Act.
Senior Tories insist the human rights convention was never intended to be used in the way it is now relied on in asylum cases, but that the court has effectively created new legislation that goes significantly further than the 1953 convention.
The Human Rights Act enables British courts to apply the human rights convention so cases do not need to be taken to Strasbourg.
The latest disclosures come after Johnson accused the EU of threatening to impose a food "blockade" in the Irish Sea that would destroy the "economic and territorial integrity of the UK". He made a passionate defence of his decision to alter the Withdrawal Agreement using the Internal Market Bill, on which MPs are due to vote this week.
As whips telephoned would-be rebels this weekend, Tobias Ellwood, the Tory chairman of the defence select committee, said: "Unamended I cannot support this bill. Let's secure Brexit – but remember what we stand for.
"Already this Bill is damaging brand UK, diminishing our role-model status as defender of global standards. Let's see more British statecraft – less Nixonian Madman Theory."
But Johnson has insisted: "Unless we agree to the EU's terms, the EU will use an extreme interpretation of the Northern Ireland protocol to impose a full-scale trade border down the Irish Sea."
In his article today, Sir Keir confirms that Labour intends to oppose the Bill as it stands, stating: "If the government fixes the substantial cross-party concerns raised about the Internal Market Bill, we are prepared to back it. But if they do not, and the talks collapse, then it is their failure and incompetence that will have let the British people down."
The Telegraph, London
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