New Report Blows ApartDominic Raab’s ‘Bill of Rights’
The Justice Secretary’s long and “dangerous” campaign to scrap the Human Rights Act was “pushed forward by parts of the media” smarting from privacy laws
The “pet project” of beleaguered justice secretary Dominic Raab – his so-called Bill of Rights – would break international law and represents a “dangerous” effort to undermine democracy, according to a new study seen exclusively by Byline Times.
Joanna George, a research fellow at the non-partisan Constitution Society and a legal consultant, will on Thursday publish a damning indictment of the government’s attempt to scrap the Human Rights Act and replace it with a new watered-down Bill of Rights.
Amid right-wing anger over an interim decision in the European Court of Human Rights to block deportation flights to Rwanda on human rights concerns last year, the scandal-hit Johnson government introduced the Bill of Rights Bill.
George describes it as a “hobby-horse” of some hard-line Brexiters, who push an anti-European narrative despite the European Court of Human Rights not being an EU institution, but one co-founded by Britain after the horrors of the Second World War.
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One part of the report, entitled ‘The ‘Modern’ Bill of Rights Bill: Substituting ‘common sense’ with contradictory constitutionalism’, notes that media coverage played a large role in fermenting the backlash to human rights legislation: “A media narrative began to emerge during the 2000s in sections of the UK tabloid press that the Human Rights Act was being used as ‘a tool for protecting the rights of lawbreakers rather than the law-abiding’.
“This narrative, which commenced around the time of the September 11th 2001 attacks in New York and was heightened around the period of the July 2005 bombings in London, grew as public concerns about terrorism and criminal activity were already in the public consciousness,” the Constitution Society paper adds.
But instead of correcting misconceptions about human rights, politicians from the Labour and Conservative parties encouraged them “by treating them as if they were true” Joanna George says.
The section on media is worth quoting in full: “Human rights are also at risk when the legal application of them becomes negatively misconstrued by the media – the fourth pillar of democracy – and used for the purposes of making profit…
“[The courts ruling some prisoners should have the right to vote in 2005] overlapped with sales of newspapers declining, whilst online news became more dominant and competitive. In response, there was ‘a greater urgency than ever before to secure headline stories’ which in some instances involved the use of unethical practices which is most famously illustrated by the News UK phone hacking scandal with the legal ramifications still ongoing.”
Article 8 of the Human Rights Act provides legal protection for the privacy of individuals, which was implemented through the Human Rights Act. It meant some stories about celebrities needed to be checked legally before publication.
“The impact of this restriction meant that certain sections of the tabloid media have been disproportionately negative about the Human Rights Act, a point highlighted by Jack Straw who as Justice Secretary in 2007 declared, ‘if you read certain newspapers you might be forgiven for thinking that human rights were an alien imposition foisted upon us by ‘the other’,” Joanna George says.
However, lobby journalists were briefed ahead of the Bill’s First Reading last summer – “defying the Ministerial Code” – suggesting to the Constitution Society author that it was a “dead cat” tactic from Boris Johnson to distract from the partygate scandals.
Failure to incorporate the European Convention on Human Rights into UK law before the 1990s led to the “inability of judges to review legislation that impacted fundamental rights on controversial issues at the time, such as the poll tax”. Instead, Brits had to petition Strasbourg directly, often at a cost of tens of thousands of pounds. There was a “void for those seeking to challenge it within the UK’s political or legal system,” Joanna George writes.
It led the then-leader of the Labour Party, John Smith, to declare in 1993 that: “Britain is alone amongst major Western European nations in not laying down in law the basic rights of its people, and in not giving its people a direct means of asserting those rights through the country’s courts.”
But it was not long after being implemented that the backlash to the Blair-era Human Rights Act began growing on the Tory right, at times egged on by media fanfare about terrorists’ or prisoners’ human rights being protected.
The origins of the new Bill of Rights stem from Dominic Raab’s 2009 book The Assault on Liberty: What Went Wrong with Rights. The 2015 Conservative Party manifesto promised to ‘scrap the Human Rights Act’ and ‘break the link’ between British courts and the European Court of Human Rights. But legal expert Joanna George notes that “little thinking on present and future human rights concerns that has occurred since then is evident in the Bill’s proposals, suggesting that the Bill is stuck in a 2015 time warp.”
Moreover, the commitment to scrap the Human Rights Act – which brought the European Convention into UK law – was actually dropped from the 2019 Conservative Party manifesto. Because of this, the bill could face being blocked by the Lords as lacking a mandate. “The House of Lords [will be able] to make major amendments to the Bill. Why consideration of this did not occur while the Bill was being drafted is unclear,” George notes.
The bill has not yet been given a second reading – leading some to think it has been jettisoned. But a Ministry of Justice spokesperson told Byline Times the government “absolutely” still intended to push ahead with the bill, while another added it would get a second reading in the Commons “as soon as Parliamentary time allows.”
The legislation appears to have been drafted with no cross-party input, and little meaningful consultation, in contrast to the Blair government’s actions on the HRA in the late 1990s. The Government’s consultation on reform of the Human Rights Act simply ‘studiously’ avoided asking ‘the most important question of all’, the Constitution Society report notes: that is, whether the replacement bill was a good idea.
“A constitutionally conscientious government who seeks to legislate for the long-term and common good would not have attempted to bypass the sort of cross-party and parliamentary collaboration which was achieved in the enactment of the Human Rights Act,” George adds.
The bill was initially shelved under Liz Truss in response to concerns about its drafting and not working in practice. But the report argues that Rishi Sunak’s failure to drop the bill signals his weakness at tackling Dominic Raab’s right-wing powerbase among backbenchers, as bullying claims on the controversial justice secretary mount.
Ready to go?
In December, Raab declared that the Bill was “ready to go”. The Constitution Society report says: “Sunak’s decision to permit the progression of the Bill – whether that be by allowing it to sit on the parliamentary agenda for a few months, or by enabling it to reach a Second Reading – suggests that he is doing so for party political reasons, in turn ignoring the constitutional, legal and wider political ramifications outside of his own party…
“By doing this, and by failing to engage in conscientious constitutionalism, he risks continuing with the poor patterns of his predecessors, Boris Johnson and Liz Truss.”
Indeed, Sunak has failed to replace the role of Minister for the Constitution and Devolution, a post which has remained vacant since September 2021 – suggesting to some democracy thinkers he does not take the issue seriously.
What the Bill of Rights will do, according to the Constitution Society Paper
• Repeal and replace the Human Rights Act 1998.
• Restrict the influence of the European Court of Human Rights (‘ECtHR’) by making the UK Supreme Court the ‘ultimate judicial authority’ on questions arising under domestic law in connection with the European Convention on Human Rights (‘Convention’).
It would likely lead the UK to be in breach of its international treaty obligations as part of the Council of Europe. As a matter of international law, it is the European Court of Human Rights and not the UK Supreme Court that is the ‘ultimate judicial authority’ – whatever the Bill of Rights says.
• Restrict free speech, making the clause protecting it “exempt in areas where freedom of speech is at its most vulnerable, specifically in criminal proceedings and issues arising in relation to immigration, citizenship, and national security,” Joanna George writes.
• Weaken rights protection by forcing courts not to interpret Convention rights as requiring a public authority to comply with positive obligations (Clause 5). “This would conflict with policy objectives of other pieces of legislation which have a human rights element, such as the Domestic Abuse Act 2021” – in other words, it would weaken public bodies’ duty to actively enable rights (e.g. by providing funding for women’s shelters), rather than just allow them to exist in theory.
• Fail to replace Section 3 of the Human Rights Act, which requires UK courts to interpret legislation in accordance with ECHR rights “so far as it is possible to do so”.
• Restrict the role of domestic courts and asserts the role of Parliament (Clause 7).
• Reduce the influence and role of the Convention in Parliament by not replicating Section 19 of the Human Rights Act. As noted by campaign group Liberty, Section 19 of the Human Rights Act requires any minister in charge of a Bill in both Houses of Parliament to lay a statement before Bill’s second reading saying that in the minister’s view, the Bill is either compatible with human rights.
“This could lead to legislation being enacted which is incompatible with the Convention. It would also weaken human rights concerns in the legislating process,” George writes.
• May lead to a higher number of breaches by the UK of its international treaty obligations as a member of the Council of Europe – dragging Britain into the the European Court more frequently.
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