Short answer: his party thinks that the European Convention on Human Rights - which the same party, in a previous incarnation, was behind, to the extent that it was neutral to supportive of the Human Rights Act 1998 - is a very bad thing, because it allows UKIP free propaganda. Grayling thinks a British equivalent - with fewer protections for whoever is currently unpopular - is a good alternative, and is determined to ignore legal advice that says that it's a shitty idea.
Longer answer:
here's a good place to start.
The convention guarantees rights: some absolute, like the right not to be tortured; some qualified, such as the right to family life. It also guarantees ‘fundamental freedoms’, including free expression and freedom of religion. Grayling has picked up something from the American originalists, who believe that the meaning of the US constitution was settled for all time when it was first issued, and shouldn’t be reinterpreted in the light of later developments in law and society. He dislikes the idea that the convention is a living instrument; certainly, its founders couldn’t have envisaged the unregulated use by law enforcement of DNA evidence, or mass surveillance – but that’s the point. A living instrument can protect against new threats to individual freedoms on the part of the state. A dead letter can’t.
In his proposed British Bill of Rights Grayling wants to curtail some of the convention rights, ostensibly in order to recapture its founding principles; in reality, to draw power back to the state and to curtail our rights and freedoms. This is where his cavalier indifference to facts turns frightening. He will introduce a ‘triviality test stopping human rights laws being used for minor matters’: meaning that the government will decide a priori whether your claim engages your human rights. He ‘will limit the reach of human rights claims to the UK, preventing cases being brought against our armed forces overseas, that just stop them doing their job and keeping us safe’. The battlefield would become a human-rights-free zone. Human rights, he goes on, will be available to ‘responsible members of society’ – responsible according to whom?
He would ‘crucially’ restrict Article 8, the (qualified) right to family and private life: he says that travellers, foreign criminals and prisoners wanting artificial insemination would be denied it. So would illegal entrants to the country and their partners and children. He wants a whipped parliamentary majority to decide who should have the benefit of human rights. This à la carte approach comes unstuck immediately, however, because Article 1 provides that signatories ‘shall secure to everyone within their jurisdiction the rights and freedoms … of this convention’. We have human rights by virtue of being human, not because we belong to a section of society that the government doesn’t yet despise. Grayling also overlooks the fact that Article 8 rights (and others) are already qualified by the ‘interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. The right to family life is already subject to larger considerations.
Another bugbear has been the difficulty that governments (of both parties) have had in expelling terror suspects and other undesirables. Since Strasbourg decided Chahal v. UK in 1996, we haven’t removed people to countries where they face a real risk of torture or inhuman or degrading treatment, because to do so would breach their Article 3 rights. That undoubtedly causes problems in the case of people like Abu Qatada who are seen as a threat to the UK’s security. The ‘real risk’ test found favour because it matched the test used in asylum cases, and because it is appropriate when trying to gauge a future risk. It makes sense to decide competing claims about past events by deciding which account is more probable; a future event is far less susceptible to that test, especially when a person’s life or personal safety may be at stake. Grayling’s answer is to replace the ‘real risk’ test with a tougher standard, and to redefine what constitutes ‘degrading or inhuman treatment’. He is happy to increase the chances of consigning people to a terrible fate in countries whose goon squads have no regard at all for human rights.
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