Raab’s reforms under attack

Key figures criticise justice secretary’s human rights plans

The justice secretary’s plans to introduce a bill of rights have been undermined by his predecessor Sir Robert Buckland as well as by the former appeal judge whom Buckland appointed to review human rights.

European Court of Human Rights, Strasbourg

In a foreword to the consultation paper he launched last December, Dominic Raab had said his proposals were:

informed by the work done by Sir Peter Gross and the panel he chaired which conducted the independent Human Rights Act review — the report which we are publishing alongside this consultation. I want to thank Sir Peter, the panel and their team for their hard work, insights, and contribution to our thinking at the Ministry of Justice.

But that was not how Gross himself characterised Raab’s response in a lecture he gave at University College London (UCL) last night:

Our report concluded that the Human Rights Act is generally working well but could work even better with the package of improvements proposed.

The reaction of government has been to produce the Ministry of Justice consultation paper, which does not respond to ours, is not grounded in anything even approximating the exercise we conducted, but nevertheless asserts that the Human Rights Act is not working well.

I have not taken up time in this lecture with a critique of it.

If Raab had chosen not to respond to the inquiry’s findings, Gross certainly did not seem to think it worth engaging with the government’s proposals. But, as the former judge noted, they had already come under attack from leading academics:

Cogent criticism has already been made of the Ministry of Justice consultation paper by others, notably from UCL, including Professors David Ormerod QC, Colm O’Cinneide and Tom Hickman QC, going to its selectivity, cherry-picking, contradictions and risking uncertainty, together with an increased number of cases going to Strasbourg.

Whatever view is taken of that criticism, the independent Human Rights Act review’s position at the time of the report’s publication was to urge government to implement its proposed reforms in full. That remains my position.

In a lecture on Tuesday to the research group UK in a Changing Europe, Buckland spoke out against his successor’s core proposal:

I do not think that we should seek to replace the Human Rights Act with a bill of rights. Doing so runs the risk of introducing an autonomous meaning doctrine and this would upset our constitutional balance. Instead, the starting point of the government should seek to codify the new approach of the Supreme Court. There are then other changes that might be worth doing to the Human Rights Act framework, some of which have been suggested by the Gross review…

In short, we should abandon the uncertainty of a bill of rights, make targeted and specific domestic reforms instead and seek to work at for further reform at international level.

Comment

Raab’s reforms, Buckland commented drily after his lecture, were “so 2015”. And that is surely the main reason why they seem unlikely to reach the statute book in the way the justice secretary intends. They are a solution to a problem that no longer exists — if it ever did.

Earlier this month, Russia was kicked out of the Council of Europe — the body that upholds and enforces the human rights convention. This is not a good time for the UK to start diverging from rulings of the European Court of Human Rights in Strasbourg.

Raab wants his bill of rights to strengthen freedom of expression at the expense of privacy. That sort of adjustment may well have some attractions. But will Boris Johnson really be persuaded that weakening human rights — in what may prove to be the last full parliamentary session before the next general election — will help him win votes? I very much doubt it.