The Sunday Telegraph

Johnson set to opt out of human rights laws

PM to open second confrontat­ion with EU in bid to ease migrant deportatio­n cases


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”.

Plans under discussion include optouts 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 (ECHR).

The move sets up a major new confrontat­ion with the EU, which has demanded the UK commits to remaining signed up to the ECHR, and keep the Human Rights Act in place, as the price of future “law enforcemen­t cooperatio­n” between the bloc and Britain.

Today, as the Prime Minister faces a major revolt over his decision to alter the EU divorce deal due to its provisions on Northern Ireland, Sir Keir Starmer accuses him of “reigniting old rows” over Brexit instead of focusing on the response to Covid-19.

Writing in The Sunday Telegraph, Sir Keir seeks to use Mr 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 Sir Keir intends to court many of the voters won over by Mr Johnson’s “Global Britain” agenda, in a sign of his determinat­ion to part from Jeremy Corbyn’s approach. He claims Mr 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 No10, the Ministry of Justice, the Home Office and the Ministry of Defence.

Dominic Cummings, Mr Johnson’s most senior adviser, has previously attacked the European Court of Human Rights for judgments, based on the ECHR, 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 ECHR, 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 after The Tele

graph revealed in February that Mr Johnson was refusing EU demands to guarantee that the UK would continue to be bound by the ECHR 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 that 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 ECHR 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 ECHR so cases do not need to be taken to Strasbourg.

The latest disclosure­s come after Mr 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”. Writing in yesterday’s Daily Telegraph, 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 yesterday Mr Johnson 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.”

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