25th April 2023
One big error by the former Lord Chancellor Dominic Raab was how he went about dealing with human rights law.
Raab insisted on outright repeal of the Human Rights Act 1998, and nothing else.
As this blog has previously averred, the Act was the Moby Dick to his Captain Ahab.
The Act had to go.
And this approach failed, even from an illiberal perspective.
For the Human Rights Act 1998 is still there, and Raab is not.
A more effective approach from an illiberal perspective is not the full repeal of the Act, but to slowly bit-by-bit reduce its effect and restrict its scope.
Take this simple clause 1(5) from the Illegal Migration Bill:
That is all that needs to be done.
For the Human Rights Act 1998 is only a statute, and what one statute provides another can take away.
The Act does not, from an illiberal perspective, need to be repealed: it can instead be subjected to dozens of similar “notwithstanding” clauses, in new legislation and amending old legislation.
There is no point in saying: don’t tell the government this!
Those in the government already know – that is why the Home Office lawyers have put that clause in the Bill.
They do not need Raab’s cavalry charge of full repeal: they can be more effective operating on the flanks, picking off targets as they choose.
Of course, if the government goes too far there may, perhaps, be an adverse adjudication by the European Court of Human Rights on such legislation.
But that would be a cost of government business, sometime down the road, and not something to prevent putting in such clauses now.
And the pushback against such clauses will be harder than defending an entire Act from repeal.
The government can and will be more savvy in its illiberalism.
And this is far more concerning, from a liberal perspective, than Raab’s futile whale-hunt.
The Human Rights Act 1998 may now be safe from repeal, but the reach of human rights law in primary legislation is certainly not safe from attack.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
I feel that someone should be keeping a list of all these carve outs and notwithstandings. Ideally an incoming Labour Government, leg by a former human rights barrister, could excise them with a statute of their own.
Alas Labour doesn’t have a track record of having deep concern for the application of human rights. Remember 90 days detention?
And, pace Hungary, Poland, Italy et al, the same approach could have been used for Brexit, had their been specific aims. But the grandstanding was just irresistable.
The HR Act, thus doesn’t have the strenght of a constitutional piece.
it can be fully repealed via simple legislation. or being locally cancelled via the nonewithstanding clause.
this is what many do miss.
In the early 1980s I boarded a bus at its terminus in a poor part of Edinburgh. At that time the buses had folding exit-doors half-way down the side. These stood open while the bus awaited its departure time. Three boys aged about 14 stood near those doors holding snowballs. At the moment the doors began to close they used them to pelt an old woman seated opposite the exit, and the bus pulled away, the driver being blissfully unaware. A young man half-smiled ruefully in my direction and said, “Bastards, eh?” There was nothing else to be done.
I now know exactly what he meant.
How things change in only a few months.
Raab has gone, and come back and gone again, and the Bill of Rights Bill has made no progress since its first reading on 22 June 2022. There is still no date for its second reading. It feels like a dead letter.
Truss has gone too, and the Northern Ireland Protocol Bill has made no further progress since completing its committee stage in the Lords in November 2022. I understand the government has abandoned this bill after agreeing the Windsor Framework with the EU, but a stake has not yet been thrust through its heart.
And Rees-Mogg has also gone, and the Retained EU Law (Revocation and Reform) Bill is still in the Lords with no announcement for its report stage, having completed its Lords committee stage at the beginning of March. It was always a bad idea: implementing by the end of this year (without causing all manner of unintended problems) looked insanely optimistic and daily becomes even more challenging. Perhaps Kemi Badenoch will push it through, but perhaps she has other priorities, and it will be allowed to drop?
But what are Sunak’s priorities? I’d suggest his “five pledges” – 1. waiting for inflation to inevitably fall as the shock caused by the Russian invasion passes into history (noting that lower inflation means prices continue to rise less quickly, not that they fall); 2. trying to grow the economy (which depends on the vagaries of measuring GDP and jobs); 3. cutting national debt (good luck with that); 4. cutting NHS waiting lists (ditto while we have strikes continuing); and 5. passing “new laws to stop small boats” so so people who “come to this country illegally […] are detained and swiftly removed”.
He can pass the laws through Parliament, but statutes do not stop boats, nor indeed build detention camps, process claims, or put people on planes to Rwanda.
One thing he can do without legislation is resolve the pay crisis in the NHS, and increase funding to deal with backlogs, to meet pledge 4 and by a side wind help with pledge 2. But that runs straight into pledge 3. Oh dear.
Just caught up with Joshua Rozenberg’s blogpost discussing government amendments being made on report and third reading of the Illegal Migration Bill today.
https://rozenberg.substack.com/p/interim-measures
These changes would essentially allow the UK to ignore interim measures ordered by the European Court of Human Rights.
I wonder why this provision was not included in the first draft, but instead put in at the last moment. I hope that was not a deliberate tactic to evade proper scrutiny.
This feels like the Internal Markets Act all over again: the UK arrogating to itself the right to break international law – that is, to deliberately breach the obligations it has imposed upon itself by signing up to an international treaty – in a “specific and limited” way.
No doubt this is consistent with the view published by the then Attorney General – someone called Suella Braverman – that “Parliament is sovereign as a matter of domestic law and can pass legislation which is in breach of the UK’s Treaty obligations”.
That may be right as a matter of narrow constitutional law, but “pacta sunt servanda” is basic proposition expected of any party acting in good faith. Undermine that and you undermine your ability to hold others to account, the ability to make new agreements, and the rule of law more generally.
The Internal Markets Act also includes a delightful feature attempting to block domestic judicial review. I can do little better than quote Lord Neuberger: “Once you deprive people of the right to go to court to challenge the government, you are in a dictatorship, you are in a tyranny.”
The problem with carving out exceptions with explicit clauses is that it proves malicious intent to avoid human rights principles. In contrast, an exception achieved by modifying the Human Rights Act might be claimed to be an unwanted side-effect of the real intention.
Without wishing to in any way diminish the importance of what you are saying, surely from a purely tactical point of view you are contrasting a Sunak government that employs statecraft to achieve its goals, and Raab, whose main sin seems to have been to say openly what others believe privately.
Sunak is no liberal. You could argue that the withdrawal of the EU sunsetting bill will serve the same purpose.
As Colbert said in another context “the art of taxation consists in so plucking the goose as to obtain the largest possible amount of feathers with the