Mance eviscerates Raab’s bill

Former senior judge warns government not to unbalance constitution

One of the UK’s most senior retired judges has said the justice secretary’s proposed reform of human rights could potentially put the United Kingdom in breach of the human rights convention.

In a lecture last week, Lord Mance said that Dominic Raab’s Bill of Rights Bill could “bias or distort” the proper balance between parliamentary sovereignty and the rule of law. It would “risk undermining what used to be the accepted — and successful — object of the Human Rights Act 1998: to bring rights home”.

Mance, who retired as deputy president of the UK Supreme Court in 2018 after serving as a full-time judge for 25 years, now sits as an arbitrator. He was delivering the 2022 Sir Thomas More lecture, organised by the Euro Group of Lincoln’s Inn, and he has kindly allowed me to circulate the full text of his lecture ahead of publication.

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Lord Mance speaking in the Great Hall, Lincoln’s Inn, last week

Raab’s bill was published on 22 June. Before Boris Johnson resigned as prime minister, the bill’s main Commons debate had been scheduled for 12 September. However, on 6 September, Johnson’s successor Liz Truss appointed Brandon Lewis as justice secretary and lord chancellor. A day later, Truss made it clear that Raab’s bill was “unlikely to progress in its current form”.

What’s not known is whether Truss’s successor Rishi Sunak will allow Lewis’s successor (and predecessor) to proceed with the reforms that he has been trying to implement throughout his political career. No date has been announced for a second reading debate.

Mance, who updated his lecture and delivered it a day after Raab was reappointed, was scathing in his criticism. “The unusually polemical aspect of the bill may have contributed to its [initial] downfall,” he said:

Its provisions mix the polemical or political with the substantive. Substantively, it was designed, first, to open up potential water or space between Strasbourg and UK jurisprudence and, secondly, to mould the approach of UK courts and the resulting jurisprudence in a manner viewed by more acceptable to those proposing the bill…

The drafters seem to have seen the Human Rights Act 1998 as a modern Hydra which, for its effective despatch, required not only a double statement that the act was repealed (clause 1(1) and Schedule 5(2)) but in addition a further express proclamation that courts were no longer (therefore) to be required, under that already repealed act, to construe legislation “so far as possible” compatibly with the convention rights (clause 1(2)(b)).

We are also unused to triumphalist proclamations like clause 1(2), stating that the bill “clarifies and re-balances the relationship” between UK courts, the European Court of Human Rights and parliament; or like clause 1(3), stating that [human rights court] judgments are “not part of domestic law” and “do not affect the right of parliament to legislate” — statements beating the air, since the contrary has never been suggested…

As to clause 1(2)(a)’s statement that “it is the UK Supreme Court” that determines the meaning and effect of the convention rights for the purposes of domestic law, that would be a fine sentiment if the bill did not go on persistently to constrain ordinary judicial approaches.

There were other provisions that Mance thought were included for essentially political or presentational reasons:

What, for example, was the point of clause 9 on jury trial? It would in effect simply record that we have jury trial when we have it, and (uncontroversially) that jury trial is capable of providing a fair trial under article 6 [of the human rights convention].

And what about clause 14? This would have purported to reverse the [European Court’s] extension in Al-Skeini v UK of the convention concept of jurisdiction to cover certain overseas military operations. But, under clause 39(3), clause 14 could not be brought into effect unless and until the secretary of state is satisfied, “whether on the basis of provision made in an act passed after this act or otherwise”, that “doing so is consistent with the UK’s obligations under the convention”.

This is a very odd, indeed on its face meaningless, clause, since doing so cannot be consistent with the convention unless the [human rights court] undergoes a Damascene conversion to UK governmental pipe-dreams by reversing its Grand Chamber decision in Al-Skeini v UK.

Mance then turned to what are called interim measures, regarded by the human rights court as the equivalent of temporary injunctions. Clause 24(1) of Raab’s bill provides that:

For the purposes of determining the rights and obligations under domestic law of a public authority or any other person, no account is to be taken of any interim measure issued by the European Court of Human Rights.

Mance noted that the bill was published eight days after the human rights court had issued an interim measure temporarily restraining the removal of asylum seekers to Rwanda. As far as is known, the government has made no attempt to challenge this and so it remains effective.

Mance went on:

On the day after that interim measure (15 June), the [European Court’s] intervention was criticised forcefully by Professor Richard Ekins and his provocatively named Judicial Power Project as “a remarkable abuse of judicial power, which discredits human rights law”. The rights or wrongs of that criticism are not my concern. Whether clause 24 was invented in the eight days before the bill’s publication, I also cannot say.

Leaving such matters aside, it is extraordinary to see legislation proposing to forbid any domestic court in future taking any account of any interim measure issued by the [European court]. Under the [human rights] convention, the [court] has jurisdiction to issue such measures “to preserve an asserted right before irreparable damage is done to it”. Such measures are, when issued, legally binding on states, by reason of states’ undertaking in article 34 of the convention “not to hinder in any way the effective exercise” by a victim of a claim before the [European court] to be a victim: see Mamatkulov and Askarov v Turkey.

The [European Court’s] issue of such a measure would normally be expected to be relevant at least to consider. The bill proceeds on the basis that judges can and would conscientiously ignore the relevant. That is, at least, a welcome tribute by the government to judicial integrity and objectivity. But it seems clear that the prohibition in clause 24 could potentially put the United Kingdom in breach of the [human rights] convention.

Mance noted that Raab’s bill would repeal section 3 of the Human Rights Act, which requires courts, so far as possible, to give effect to legislation in a way that is compatible with human rights:

Again, the bill does not quite give the whole picture. It would leave unmentioned —and presumably untouched — the “strong presumption” at common law in favour of interpreting an English statute consistently with the United Kingdom’s international obligations: see Assange v The Swedish Prosecution Authority.

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This is not as cogent a presumption or tool as section 3, but the bill would bring its role to the fore.

The bill also addresses what’s called the Ullah principle, as reformulated by Lord Brown of Eaton-under-Heywood in Al-Skeini v Secretary of State for Defence:

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Clause 3(3) of the bill would now expressly prohibit any court from going farther by adopting an interpretation of a convention right that “expands the protection conferred by the right” unless the court had “no reasonable doubt” that the [European Court] would itself adopt this expanded interpretation…

As it happens, clause 3(3) would in reality do little more than restate existing law by crystallising the Ullah approach into hard law and making it clear that this applies even in cases within the margin of appreciation. The Supreme Court had already decided as much in a significant judgment issued only six days before the Gross review last year: Elan-Cane v Secretary of State for the Home Department.

In a footnote, Mance refers to “the lèse-majesté” of the bill’s title. I understand him to be suggesting that the bill bears little comparison to landmarks of the constitution such as the Bill of Rights 1689. He also pokes fun at its drafting:

The requirement in clause 4 to give “great weight” to freedom of expression is benign, even if it also heralds a profusion of adjectival activity which follows in the bill. The use of “great weight” in clause 4 invites us to ponder what difference there might be between the existing requirement in section 12(4) of the Human Rights Act to “have particular regard to the importance” of the right to freedom of expression and the bill’s requirement to “give great weight to the importance of protecting” the right of freedom of speech (clause 4).

“Great weight” also re-appears in clause 5, relating to positive obligations…

Clause 6 introduces a new adjectival gradation: “the greatest possible weight”…

There are two further areas in which the bill sought to control or influence the balancing exercise at the heart of the convention…

Clause 8 addresses the frequent and long-resented reliance on the right to private and family life to resist deportation of a foreign criminal (“P”). Such reliance is only to be possible where the deportation would involve “manifest

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harm to a qualifying member of P’s family that is so extreme that the harm would override the other paramount public interest in removing P” and harm is “extreme only if (a) it is exceptional and overwhelming, and (b) it is incapable of being mitigated to any significant extent or is otherwise irreversible”.

Further, it is only “in the most compelling circumstances that (a) the court could consider that removing P… would cause extreme harm to a member of P’s family other than a qualifying child, and (b) the court could not reasonably conclude that the strong public interest in removing P… outweighs harm to a member of P’s family other than a qualifying child.”

Dictionaries are clearly put to good use in the ministry.

Mance has given us a detailed, forensic evisceration of Raab’s Bill of Rights Bill that will be of great value if it now resumes its parliamentary passage. I can see no reason why the prime minister should want to resurrect a bill that the former justice secretary Sir Robert Buckland described as a “cure in search of a problem”. It goes further than the Conservatives promised in their election manifesto and would become bogged down in the House of Lords.

But if Sunak does not have time to read Mance’s lecture in full, he might usefully ponder its final paragraphs:

Domestically, the bill invokes the parliamentary democracy of which we are proud, and which I believe that our courts also recognise, as witness cases such as Animal Defenders, Nicklinson and Elan-Cane. But, we should remember that our democracy rests on two pillars, parliamentary sovereignty and the rule of law, of which respect for fundamental rights is a most basic element. In the absence of any written constitution establishing a formal relationship between these two pillars, we rely on tradition, mutual respect and general societal values and attitudes to ensure their consistent inter-action.

The United Kingdom has, in common with all member states of the Council of Europe, supported the rule of law by, amongst other ways, subscribing to the European Convention on Human Rights, and it is welcome that there is no intention of going back on this.

At the heart of the convention is the desirability of the striking of a fair balance by a neutral arbiter in the field of human rights, and this was at the heart of the carefully constructed domestic scheme of the Human Rights Act. The danger of some of the provisions in the Bill of Rights Bill was that they were designed to and could bias or distort the proper striking of that balance.

Governments can always point to particular judicial decisions that irritate or incommode them. So too can judges. No court, judge, person or institution is perfect. But that is not a reason for abandoning or damaging a generally sound system, still less a hitherto sound institution or relationship.

1. The Protection of Rights — this way, that way, forwards, backwards... is the 2022 Sir Thomas More Lecture, organised by the Euro Group of Lincoln’s Inn and given by Lord Mance on 26 October 2022. The lecture is to be published in 2024 in The Sir Thomas More Lectures 2018-2023: Lincoln's Inn Lectures on European Law and Human Rights by Wildy, Simmonds and Hill Publishing. Copyright © Lord Mance.

2. Lord Dyson at paragraph [122].

3. Paragraph [106]. “As Lord Bingham of Cornhill observed… ‘the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. I would respectfully suggest that last sentence could as well have ended: ‘no less, but certainly no more’.”

4. Italics added by Mance.