Raab’s bill won’t work

Former judge says Bill of Rights Bill is neither necessary nor sufficient

Dominic Raab’s Bill of Rights Bill will not achieve its apparent aims, the former appeal judge who reviewed human rights legislation for the government argued last night.

Sir Peter Gross, who chaired the Independent Human Rights Act Review last year, said there was an evidence-based case for incremental change. But the case for repealing and replacing the Human Rights Act 1998, as the justice secretary plans to do, had not been made.

Sir Peter Gross giving evidence to MPs and peers in September

Delivering the Constitutional and Administrative Law Bar Association annual lecture in London, Gross argued that Raab’s bill was neither necessary nor sufficient:

There are undoubtedly current political issues of concern which require addressing in the political and diplomatic plane; domestically, there are (at the very least) legitimate concerns about protestors blocking motorways; internationally, there is an understandable interest in stopping people smugglers sending small boats across the Channel.

There is no basis for supposing that the Bill of Rights Bill will assist in the resolution of those issues. Given the government’s commitment to remaining a party to the [human rights] convention the Bill of Rights Bill is not, and is incapable of being, sufficient to achieve the apparent aims of its promoter.

Nor is the Bill of Rights Bill necessary to attack such problems. The resolute application of existing laws, especially in a climate of judicial restraint, coupled with sustained political and diplomatic effort, are overwhelmingly more likely to produce results.

If the government was going to remain signed up to the convention, it was “curious to risk increasing friction with the [human rights] court, reducing the UK’s influence in that court, increasing the number of cases brought there and the number in which the UK loses”. And if legislation was the answer, “it might be thought that targeted legislation better serves the public interest”.

The independent review chaired by Gross had produced evidence for its recommendations. But “other than doctrinaire, unsupported assertions, no basis — still less any reasoned basis — has been advanced for rejecting them”. Raab had never engaged with with “the thesis that the evidence supported incremental change, involving specific and targeted reforms to the Human Rights Act, not its repeal”.

Throwing the baby out with the bath water was to detrimental to the interests of the United Kingdom, Gross argued. Lawyers specialising in commercial and business work had told Gross and his panel that the Human Rights Act and its links to the European convention contributed to legal certainty.

He went on:

It would be unwise to undermine either or both the value of UK legal exports and the UK’s leadership role in law and dispute resolution by changes to the Human Rights Act, unless soundly based.

If passed by parliament next year in its current form, Raab’s bill would be known as the Bill of Rights 2023. Two weeks ago, the former Supreme Court deputy president Lord Mance referred to what he described as “the lèse-majesté” of the bill’s title.

Gross went further:

Typically, a bill of rights reflects fundamental, enduring values and is an uplifting document, requiring and commanding wide-ranging consensus. The Bill of Rights Bill is not a bill of rights. Labelling it as such only serves to encourage cynicism.

Gross has kindly allowed me to publish the full text of his lecture.

Comment

The Gross review’s overall conclusion was that the Human Rights Act had generally worked well, benefitted many people and fulfilled three of its original objectives:

• Bringing rights home

• Reducing the number of cases that the UK lost at the human rights court in Strasbourg

• Enabling courts in the UK to help develop Strasbourg case-law

Although his panel has been disbanded after completing its work, Gross continues to argue that its recommendations should be implemented. It clearly pains him, as a former judge, to see the justice secretary ignoring evidence that Raab’s predecessor Sir Robert Buckland had commissioned Gross to obtain.

Raab has never responded to Gross’s recommendations, nor engaged with them in any way. Gross describes this as “unfortunate”. Others might use stronger language.

There seems to be a growing head of steam against Raab’s proposals. I described Mance’s speech as a detailed, forensic “evisceration” of Raab’s bill, a description quoted with apparent approval by the former senior government lawyer Sir Jonathan Jones in a lecture at Middle Temple on Monday.

On the political front, the government’s natural supporters are wondering why Rishi Sunak is apparently letting Raab go ahead with his bill. Henry Hill, deputy editor of the influential ConservativeHome website, asked yesterday “why the prime minister would go to the trouble of reviving a bill which will not only do more harm than good if enacted, but [is] likely prove extremely difficult to get onto the statute book in the first place”.

Hill continued:

Whilst there are many criticisms to be made of the bill — not least that large sections of it are simply inoperative — the most salient is simply that it will not do what it purports to do.

And, although he had not seen Gross’s lecture, Hill reached a similar conclusion:

The useful measures from the Bill of Rights Bill could be stripped out and tabled in a much narrower piece of legislation.

In his newsletter yesterday, Peter Foster, public policy editor of the Financial Times, argued that Raab’s return to the Ministry of Justice raised further questions about Sunak’s judgement. It was, said Foster, “difficult to overstate how much derision has been heaped on Raab’s bill by the legal establishment”.

Watch out for more of that next week.