Former judges attack Raab’s bill
Two more senior legal figures question need for human rights reform
Two former judges spoke out last night against Dominic Raab’s plans to reform and replace the Human Rights Act 1998. The justice secretary has said his Bill of Rights Bill will return to parliament in “the coming weeks”. It has recently been heavily criticised by Lord Mance and Sir Peter Gross, among others.
“The case for the bill is not based on compelling evidence and it has not been subject to appropriate scrutiny,” said the former master of the rolls Lord Dyson in a lecture for the law reform group Justice. “If enacted, it would risk giving rise to years of uncertainty for little or no gain. It would risk destabilising the UK’s devolved settlements and the Good Friday agreement; and putting the UK in breach of longstanding international legal obligations.”
Speaking at the University of Law in Leeds, Dyson said the case for legislation along the lines proposed by the justice secretary was “simply not made out”.
The government has not identified any significant practical shortcomings in the Human Rights Act that make it necessary or desirable to introduce the bill… Some of the proposals that are made in the bill are pointless and would be unlikely to make any significant practical changes to the status quo.
I regret to say that they do not seem to be borne of well-founded concerns about the working of the Human Rights Act. I can only assume that they have been devised for other reasons.
If matters stopped there, said Dyson, the bill could be dismissed as “fairly harmless window-dressing”. But it was far more serious than that. Some provisions, if enacted, would materially diminish human rights protection.
It was clear, Dyson acknowledged, that the government did not like the human rights court:
But it has decided not to go the full distance and withdraw from the [human rights] convention, thereby escaping from the shackles of the [court]. The fundamental weakness in the bill is that, so long as the UK remains a party to the convention, it is subject to the jurisdiction of that court and claimants will continue to have the right to take their cases to Strasbourg.
Over the past two decades, the HRA has given individuals an effective mechanism for enforcing their convention rights. Some of the central provisions of the bill would weaken these rights and make their enforcement more difficult.
A gap in interpreting the convention would open up between the domestic courts and the European Court of Human Rights. It made little sense for the UK to remain a party to the human rights convention while the government was making it more difficult for individuals to vindicate their convention rights in the UK courts.
Puzzling and disquieting
While Dyson was speaking, Kate O’Regan was delivering the third of her three Hamlyn lectures. From 1994 to 2009, O’Regan was a judge of the South African Constitutional Court. She was speaking in Oxford, where she is now director of the Bonavero Institute of Human Rights.
“As an outsider,” she said, “and someone who comes from a post-conflict society in which the entrenchment of human rights is by and large an uncontroversial matter, the debate in the United Kingdom about its membership of the European Convention of Human Rights is both puzzling and disquieting.”
The debate is puzzling because the Human Rights Act in Britain represents a deft management of two conflicting principles: democracy and respect for human rights. And even those political theorists most sceptical of constitutional review respect the balance struck in the Human Rights Act. Opposition to it, therefore, cannot easily be explained as a democratic concern. Parliament remains sovereign in the law that it chooses to make and unmake.
It seems to me that much of the scepticism concerning the protection of human rights in Britain is thus not properly understood scepticism about the design of the Human Rights Act itself, and that is disquieting…
Today, the divide between illiberal and authoritarian societies who, in their deeds, scorn the international human rights project — and those societies that remain committed to the post-World War II vision of a commitment to international human rights as the foundation of freedom, justice and peace in the world — is deepening.
O’Regan found it worrying to see societies that supposedly supported human rights now wavering in their commitment.
Her comments were part of a lecture series called Courts and the Body Politic. They will be published in due course.1
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I am a member of the committee that administers the Hamlyn lectures. The first was delivered by Lord Denning, as he was to become, in 1949.