7th September 2022
The Human Rights Act 1998 is still in place.
And Dominic Raab is not.
Raab was three times a minister at the Ministry of Justice, and his personal and political priority was the repeal of the Act.
The legislation was the Moby Dick to his Captain Ahab.
But the whale has swum away again.
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Raab’s latest attempt to repeal the Act was the so-called “Bill of Rights”.
When this was published my reaction was that it was a dud and a misdirection.
In essence, the rights under the European Convention on Human Rights would still be enforceable in domestic law, but there would be lots of provisions to make such enforcement more difficult in practical situations.
The United Kingdom cannot leave the ECHR without breaching the Good Friday Agreement – and so the “Bill of Rights” was a cynical attempt to make it look like something fundamental was happening when it was not.
Given the MoJ is facing chaos and crises in the prison and criminal justice systems, it seemed an odd priority for scarce ministerial and civil servant resources, as well as a waste of parliamentary time.
And this was especially the case when repealing the Act was not even in the 2019 Conservative manifesto, and so such a move was likely to be blocked or delayed by the House of Lords.
It was difficult to conceive of a greater exercise in pointlessness.
But, for Raab, the Act had to be repealed.
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“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick.”
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And now today, on the first full day of the new Prime Minister’s time in office, we read that the “Bill of Rights” is no more:
EXC: Cabinet agreed to shelve Raab’s British Bill of Rights designed to protect against meddling ECHR in Strasbourg, The Sun can reveal.
It was due back in Commons next week.
— Harry Cole (@MrHarryCole) September 7, 2022
But much vaunted plan to make the Supreme Court in London ultimate decision-maker on human rights issues – not the ECHR in Strasbourg – now risks running out of time now before the end of the Parliament.
Officially it will be “reviewed” but opponents say “it’s dead”.
— Harry Cole (@MrHarryCole) September 7, 2022
This revelation has the ring of truth.
The “Bill of Rights” is dead.
And so…
…Hurrah.
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But.
The cheers cannot last for too long.
For this further news is also important:
Whitehall source tells me 'principles & objectives' remain the same but new govt want to "review most effective means to deliver objectives of the Bill as a whole thru new legislative agenda", so Raab's bill won't be back in Commons next week https://t.co/qINiBkov6h
— Beth Rigby (@BethRigby) September 7, 2022
The quoted statement may look like verbiage – but it signals something important.
The “Bill of Rights” was always going to be a clumsy vehicle for all the illiberal provisions the government would like to have so as to make it more practically difficult to enforce convention rights.
And so instead of putting many of these illiberal provisions in one big bill that was likely to fail, the same illiberal ends will now be achieved in other ways.
These moves will be driven mainly by the Home Office, and not the MoJ.
This is a canny move by the government – even if it is an unwelcome one from a liberal perspective.
The claps and congratulations about the “Bill of Rights” being dropped should therefore not last too long.
The government is just going to seek the limit the benefits and protections of the Act in other, less blatant ways.
Dominic Raab and his “Bill of Rights” may have gone.
But the need to be vigilant about what the government wants to do with our Convention rights has not gone at all.
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I’m delighted that it’s gone but I have a horrible feeling that you’re right. The movement to challenge the Scottish Government’s GRA reform, for example, shows that attacking the constitutional settlement is still very much on the cards from the new administration
I’m not sure if Raab’s proposed legislation was oxymoronic or antipodal, but either way, it was deserving of our concern and suspicion: any legislation that grants more power to the state or which strips rights away from the individual should be something we treat with great caution.
The only lingering concern I would have would be whether it turns in to Zombie legislation and comes back to haunt us in the future.
According to the list of Truss’ commitments during her campaign, compiled by Político, in Eastbourne on the 5th of August she said this:
“We also need to legislate in the British Bill of Rights to make sure that we can’t be overruled by the ECHR because it’s vitally important we protect our own borders.”
Good news that it has been dropped, presumably because it was a complete dog’s breakfast!
We at least now have a breather because as you indicated in yesterday’s blog, two years is not long enough to get “controversial” legislation through both houses.
They’ve got to withdraw from the European Convention of Human Rights before anybody challenges our right to the free expression of the opinion of the people under it.
That could overturn the whole apple cart.
We are in the place we are in because the opinion of the people was ignored in the choice of the leader of the opposition at a time when an effective opposition was desperately needed and we’ve just had a new prime minister appointed by a handful of the most rabidly delusional people that this nation is likely to produce.
As Churchill said: “Is the party opposite really to be entitled to pass laws affecting the whole character of the country in the closing years of this Parliament without any appeal to the people who have the vote and who placed them where they are? No, Sir, democracy says, No, a thousand times No.”
His 1947 Brexit speech was bang on the nail, I’m surprised how infrequently it has been quoted.
The EHCR is the crux of it, the driving force behind the whole charade. As the saying goes, “Whilst all progress is change, not all change is progress…”
Though he would never admit as much in public, the motive behind the government’s desire to replace the EHCR with a national “Bill of Rights” is to actually take away rights that the EHCR provide. It is easy to establish this with three logical statements:-
1. If the UK government wished to extend or enhance rights “above and beyond” the ECHR, it could do so without replacing it.
2. If the UK government wished to replicate the ECHR in its entirety and have something that afforded us the exact same rights, then it need do nothing, for we already have all the legal protections we need.
3. Therefore, in the absence of any other logical argument, we can show that the only viable basis for replacing the ECHR with a UK “Bill of Rights” is intended to be – or become over time – less effective for UK citizens.
The only motive for a UK Bill of Rights (that replaces the ECHR) would be to take away rights we already currently enjoy.
But what could they be? Well… a glimpse at the 18 Articles of the ECHR might provide a few clues:-
1. Respecting Rights
2. Life
3. Prohibition of torture, inhuman or degrading treatment
4. Prohibition of slavery, servitude and forced labour
5. Liberty and security of person
6. Fair trials
7. Prohibition of retrospective criminalisation of acts
8. Privacy
9. Conscience and religion
10. Expression
11. Association
12. Marriage
13. Effective Remedy (for violations of rights defined therein)
14. Prohibition of discrimination
15. Permission of derogation at time of public emergency
16. Permission to restrict the political activity of foreigners
17. Prohibition against abuse of rights so granted
18. Limitation of restriction of granted rights
We could go on and look at the 14 protocols also defined, but in large part they sharpen and refine the articles. In short, there is nothing in the ECHR that any sane, reasonable person would look at and think, “You know, I don’t think we need that…” This stands to reason: it was carefully and collaboratively developed over a period of 4 years by the then Council of Europe.
Yet for all of the above, the simplest and most powerful argument in favour of keeping the ECHR is merely that no government minister has yet been able to state what is so wrong with it that it needs to be changed. They cannot, because their true motive is take away our rights, not protect them.
And it might be looking a bit worn around the edges from over-use, but the old saying still stands:-
“When you take away our rights, all we’re left with is the Bill…”
And the price will be high indeed.
Well, to be fair, there is a case that some make about “activist” judges expanding the scope of the rights in the ECHR and employing them in ways that the “framers” might never have expected or intended. Typically some examples may be given of situations where, say, criminals, or illegal immigrants, have been granted rights that others think they do not deserve, and might struggle to rely on themselves.
Some may see that as a strength that the rights in the EHCR are not pickled in aspic and preserved as an ornament, but instead the rights evolve to address new situations and circumstances as society and technology moves on. Others don’t.
And many don’t give it much thought, but just want to be left alone to get on with their lives.
I was pleased when I read that the Bill of Rights was to be abandoned but I think your analysis is spot on. The Tory government might have abandoned that particular vehicle but they have not abandoned the destination.
It is right to be alert to whatever replacements (plural intentional) they are putting in place.
Since we’re meant to party like it’s 1979, let’s recall Steven Bell’s “If…” cartoon when Thatcher replaced Keith Joseph as Education Secretary with Kenneth Baker. The “before” view was of a “madman with a bucket of shit”, but afterwards clearly very much improved by being a “smooth man with a discreet container of ordure”. This is surely the pantomime we’ll be treated to now.
With Braverman at the Home Office insisting leaving the jurisdiction of the ECtHR is essential this can only get worse than it was going to be with Raab and his pointless Bill of Rights reform.
Reading, as one does from time to time, the ECHR’s guidance on Article 6, may shed some light on why the government is so keen to evade the ECHR’s jurisdiction:
“…while Article 6 requires that judicial proceedings be
expeditious, it also lays emphasis on the more general principle of the proper administration of justice
(Von Maltzan and Others v. Germany (dec.) [GC], 2005, § 132). Nevertheless, a chronic overload cannot justify excessive length of proceedings (Probstmeier v. Germany, 1997, § 64). For an example
of unreasonably lengthy proceedings before a constitutional court, see Project-Trade d.o.o. v. Croatia, 2020, §§ 101-102.
484. Since it is for the member States to organise their legal systems in such a way as to guarantee the right to obtain a judicial decision within a reasonable time, an excessive workload cannot be taken
into consideration (Vocaturo v. Italy, 1991, § 17; Cappello v. Italy, 1992, § 17). …”
I think Elton was wrong: “Accountability” seem to be the hardest word to say…
And if you’re not held accountable, yo don’t need to say “sorry” anyway…
Interestingly:
“… 487. A strike by members of the Bar cannot by itself render a Contracting State liable with respect to the “reasonable time” requirement; however, the efforts made by the State to reduce any resultant delay are to be taken into account for the purposes of determining whether the requirement has been complied with (Papageorgiou v. Greece, 1997, § 47).”
Well noted and important. I would add that the likelihood, nay the certainty, of the intent to use of the Home Office to administratively block appeals to the ECHR and also frustrate rulings of the ECHR became crystal clear with the appointment of Suella Braverman as Home Secretary.
Lest we forget one of her last actions as AG was to order that no government lawyer may inform a minister that a planned course of action is illegal but rather must find a way round the illegality.
The Hippocratic Oath is not compulsory for doctors, but they seem to approve of it, for the most part. A framed copy hangs in a corridor of my local surgery. Is there an equivalent for lawyers, exhorting them first and foremost to do no harm?