Watch out – the Tories will use their Rwanda ‘win’ to dismantle the law that protects your human rights

This government has long played fast and loose with the law, says Helena Kennedy. Its plan to deport asylum seekers to Kigali, in the face of advice that it would breach international conventions, is the latest example of our justice system being critically undermined – but it won’t be the last

Baroness Kennedy: ‘After 14 years of Conservative government, our justice system is on its knees’ (PA)

Ahead of what turned out to be a pivotal day for the government’s Rwanda bill, Suella Braverman made a sudden return to the front line of public life earlier this week, with a characteristically abrasive appearance on BBC Radio 4’s Today programme.

It was not the former home secretary’s unvarnished criticism of Rishi Sunak’s “fatally flawed” legislation that caused my hackles to rise, or her refusal to be drawn on whether she would back a leadership challenge against him. It was when Braverman said that no asylum seeker arriving in the UK in a small boat should have access to the courts – and that we should leave the ECHR and its court.

Braverman may no longer be in government, but as one of the loudest cheerleaders for the Rwanda idea (at least until she was sacked), her interventions and continuing influence in the party means she still informs its direction of travel.

This matters, because as elections approach, it is a sad fact that not many voters will be asking canvassers on the doorstep about the law – and the state that this government has left it in.

The country is facing cataclysmic financial hardship. Every institution is falling apart – our schools, our NHS, the care system, our universities and our colleges. Local authorities are going bankrupt, and there is a cost of living crisis causing untold poverty and mental distress. The lack of decent affordable housing is now at a critical state.

The list is endless, and these will be the demanding issues most voters will want to hear being addressed. Many will be less concerned or even aware that our justice system is also on its knees.

Yet, over the last 14 years, we have seen the destruction of legal aid, the closing of courts, the demolition of the Probation Service, the de-professionalising of large sections of the law, the ratcheting-up of prison sentences and overpacking of the prisons.

A consequential backlog of many thousands of criminal cases has arisen. All this has been wrought against the backdrop of utter contempt for those solicitors and barristers who act for asylum seekers and other impoverished litigants, and for the judges who hear such cases. I would take a bet that there will be barely a word by government politicians about seriously addressing any of these issues.

The government has shown a disregard for law and rules, whether they are parliamentary conduct regulations, national statutes or international laws. You can put in place Covid regulations carrying policing penalties one minute, and breach them the next. You can have your name on a UN convention like the Genocide Convention or the Refugee Convention, and brazenly ignore your legal obligations. You can sign a treaty on the departure from the EU one minute, and seek to dismantle it unilaterally the next.

Rules exist about not profiteering from being a parliamentarian, yet when one of your loyalists is found to have contravened the rules repeatedly, you try brazenly to rewrite the rules. It would seem that the law is, to some right wingers, what taxes were to New York’s “Queen of Mean”, Leona Helmsley: “We don’t pay taxes – only the little people pay taxes.”

For people of this type, human rights are some sort of foreign intervention that need to be curtailed.

So while the justice system is falling around our ears, I have no doubt that the drafters of the Conservative manifesto will still commit to the repeal of the Human Rights Act, which introduced the European Convention of Human Rights into English law, and will again promote the idea of a “British Bill of Rights”. Most other parties will seek to preserve the Human Rights Act and may not even feel it needs a mention in their manifestos.

If a British Bill of Rights follows previous blueprints, it will create a society in which not everyone is equal in their access to justice; it will mean the government can act in ways that undermine people’s rights without fear of oversight by the courts, creating a country in which the state does not owe us a duty to safeguard our rights, whether in the everyday circumstances we all experience or in the extreme situations that we hope we never will.

There is also the problem that if we refuse to implement the judgments of the European Court of Human Rights, as some on the right of the Conservative Party propose, it will put us at risk of being excluded from the Council of Europe, ostracising us from another very important club of nations, which brings together 46 member states in shared purposes which extend far beyond the ECHR and include sport and shared cultural activity.

But the Convention is a vital part of the Council of Europe because it establishes shared values and rights, which are fundamental in a modern liberal democracy. If we leave, or are forced to depart by breaking with the Convention, for example by ignoring interim measures of the Court (a form of interim order used to prevent irrevocable harm to an applicant pending the main hearing), or by refusing to act on judgments, we will be in the company of that unattractive duo, Russia and Belarus.

No doubt the justification will be the mistaken notion that we have to follow a “foreign” court’s judgments to the letter (NB: we do have a British judge on the court), as was suggested after the case over prisoners’ voting rights in 2005. It was claimed that the court’s decision meant felons who raped and murdered would be allowed to vote. In fact, nation states are given a wide “margin of appreciation” when putting judgments into effect.

There is respect for the fact that different nations have different cultures. What concerned the court, which puts great store by individual rights, was the idea of a blanket ban applying to all prisoners. Had the UK responded by letting prisoners with sentences of one year or less keep the right to vote that would have resolved the issue. It would have been a reasonable compromise as we surely should be trying to keep low-level offenders engaged with society. However, this case is still used as red meat by right wingers to engender hostility towards the Convention.

There are other problems which rarely get a mention. The ECHR is fundamental to the Good Friday agreement and the Northern Ireland peace process. How can that be resolved? Both Scotland and Wales wish to retain the ECHR; Scotland which has its very distinct legal system, has special legislation which incorporates it. How will that work?

The reality is that the Human Rights Act has greatly enriched our law. As a lawyer who has spent a large part of my long professional life acting for women and minorities, I can testify to the huge advances which have been made in reforming the criminal justice system and making it more responsive to their experiences by using the Human Rights Act. As a legal tool it has made it possible to challenge, in most areas of law, egregious abuses of power and appalling decision-making by arms of the state, public bodies and other entities – to the benefit of us all. It has been invaluable in challenging discrimination.

What I have never understood is that, above all else, the ECHR and our Human Rights Act protect and promote individual rights, which are supposed to be of supreme value to Conservatism. It was exactly for this reason that, after the war and at the behest of Winston Churchill, it was drafted by David Maxwell Fyfe, an arch-Tory attorney general, to counter the communist, collectivist ideologies that were a source of alarm.

What those who govern us do not seem to like is the idea that ordinary citizens are able to challenge authority that is abused.

So the big question for all prospective MPs this coming election should be: Where do you stand on the Human Rights Act? If you get a knock on the door from a candidate, you know what to do.

Baroness Kennedy KC is co-host of the legal podcast, Law And Disorder, with former Lord Chancellor Lord (Charles) Falconer, and Sir Nicholas Mostyn, a former High Court judge and leading divorce lawyer. To listen, go to podfollow.com/1726569766