Dr Michael Arnheim is a barrister. He has published 22 books on philosophy and law.
My advice to Rishi on Human Rights Law was trumpeted loud and clear on the front page of both the Daily Mail and the Daily Express last September – and was completely ignored. I expanded my arguments in a booklet titled Fixing Human Rights Law published by the Civitas think-tank – also ignored by Tory ministers.
The new government seems no more likely to pay attention. I suspect instead that Labour will try to bury their heads in the sand on the problem of illegal immigration – and use the recent riots to try and discourage debate on the topic altogether. But history suggests that this will not work, and will instead only store up trouble for the future.
Sir Keir Starmer has condemned the widespread riots as “far-right thuggery”, with the threat that rioters will face “the full force of the law”. And the Director of Public Prosecutions has suggested that some violent protestors might be charged with terrorism offences.
What a pity that the Riot Act is no longer available – having been repealed in 1973 by the feeble Heath Government just when it was most needed!
In the event of a “riotous assembly”, the Riot Act was read out aloud giving the rioters one hour to “disperse”, after which they would be arrested – and if any of the rioters happened to be “killed, maimed or hurt” while being seized or apprehended, then the “peace-officers” or anyone assisting them would be “free, discharged and indemnified” for so doing.
In other words, peace-officers or their assistants who killed or injured any of the rioters would not be guilty of any crime. In practice, if the rioters had not dispersed after an hour, peace officers would (or at least could) open fire on them without fear of the consequences.
But is that really the right way to handle a riot? In the so-called Peterloo Massacre of 1819 a crowd of about 50,000 gathered in St Peter’s Field in Manchester to demand the reform of parliamentary representation (Manchester itself was not separately represented in the House of Commons). After the Riot Act was read troops opened fire on the crowd, killing eighteen and injuring between 400 and 700.
Needless to say, this did not stop the pressure for reform of Parliament, and in 1832 the Great Reform Bill was passed, the first of a series of laws extending the franchise until universal suffrage for men and women on an equal footing was finally achieved in 1928.
Arson, looting, vandalism, property damage, and violence of any kind do indeed have to be condemned in the strongest terms, and their perpetrators punished. Nor can we neglect the role of the internet in allowing the fomenting of hate through disinformation.
But the lesson of Peterloo is simple: that you can’t hold the lid down on a boiling cauldron.
One can, and should, deprecate and punish the recent disorder without denying the fact that it is, in part, politically motivated. Yet even some senior police officers have been quick to dismiss the right-wing demonstrations as pure, gratuitous violence by criminal elements.
That is simply incorrect: the fact that they targeted hotels housing asylum seekers and solicitors’ firms representing them makes it clear that these were protests – or, if you really object to the word, at least that they had political motivations. (This does not mean that they were lawful, given their tactics, or that you must agree with their politics.)
Moreover, the fact that far-right elements latch on to an issue doesn’t mean that there is not an underlying problem about which law-abiding citizens can be justly concerned. Border control is a basic responsibility of the State, and one which modern governments seem increasingly incapable of discharging.
Trying to use the riots as an excuse to shut down debate on illegal immigration will only, in the long run, mean more riots. The Government’s energetic response to cracking down on public disorder must be matched by an equally vigorous approach to immigration policy.
Labour would be quite entitled to pin the blame on the Tories for the migration crisis – because that is what it is, and ministers were certainly right to immediately scrap Sunak’s ridiculous Rwanda policy. But they have not come up with any real alternative. Could that be because they’re not too bothered by the illegal migration overload?
Doubtless ministers will, like Conservative ministers before them, try to claim that there is nothing they can do – that Britain’s legal obligations bind their hands, and make a swifter and more effective deportation system impossible to implement. But this is not the case.
It has been suggested, for example, that there is a right under Article34 of the ECHR for failed asylum seekers to apply to UK courts. This is simply wrong, for two reasons.
First, the only rights that you can claim in Strasbourg under Art 34 are the substantive rights of the ECHR, such as freedom of expression or freedom of religion. You cannot ask Strasbourg to give you the right to enter or live in a foreign country. There is no such right in the ECHR.
Secondly, Art 34 is available only against your own country. You can’t just pick a country at random that happens to be a signatory to the ECHR (there are 47 of them) and launch a case against it in Strasbourg on the ground that it would not let you live there. Every Art 34 case of which I am aware was brought against a country by a national of that same country.
Likewise, Article 31 of the Refugee Convention explicitly applies to those “coming directly from a territory where their life or freedom was threatened”.
The following categories of asylum seekers are thus not covered by it: those whose life or freedom was not under threat in their home country; those who have not come directly from a country where their life or freedom was under threat; and even those who have come directly but have not applied “without delay” with a good reason for their illegal entry or presence.
Suffice to say, few of those claiming asylum in the UK have arrived here directly have arrived here directly from Syria, Eritrea, Iran, et al.
Finally, if the courts continue interpreting the law in ways that conflict with Parliament’s wishes, Parliament can simply change the law – in extremis by legislating against individual decisions.
The bedrock constitutional principle of parliamentary sovereignty gives Parliament the right and the power to revoke any court decision for any reason (or none). In the words of Lord Neuberger, the former President of the UK Supreme Court: “Any judicial decision can be revoked by Parliament through a statute”.
Politicians and lawyers who say that that would interfere with judicial independence are talking nonsense. Judicial independence means that the state cannot force judges to make specific decisions in particular cases – that is, usurp the judiciary’s role in interpreting what the law is, as it currently stands.
But that is completely different to allowing the judges to usurp Parliament’s prerogatives in deciding what the law ought to be. Lawyers and judges have no right and no mandate to make such decisions. Yet too many campaigning lawyers spy in the courts’ interpretative function the opportunity to take a privileged role in making law – and try to falsely paint politicians’ attempts to change the law (which is the politicians job) as interfering with the judicial function.
In this, they have plenty of allies amongst the politicians, many of whom are happy to feign impotence and make excuses if it avoids difficult decisions. But in our constitution, the buck stops with the House of Commons, and the House of Commons alone.
