What is Raab thinking of?

Is the justice secretary pining for a ‘British’ bill of rights?

Dominic Raab has given me more details of the human rights reforms he is planning to introduce.

In a consultation paper published last December, the justice secretary said that the government

will in due course put forward legislative proposals to parliament to revise and replace the Human Rights Act with a bill of rights.

As I wrote at the time, this neatly encapsulated the ambiguity at the heart of his proposals. Was this a promise to “revise… the Human Rights Act”? Or was the government saying it would “replace the Human Rights Act with a bill of rights”?

Dominic Raab MP, secretary of state for justice, lord chancellor and deputy prime minister.

It’s the latter, Raab told me in an interview recorded last week. However, he envisaged keeping the European Convention on Human Rights (ECHR) in a schedule to the new legislation — just as it is in the Human Rights Act 1998. Substantive changes would be made in the bill’s clauses.

That’s not a bill of rights at all, I suggested. It would merely be a Human Rights (Reform) Act. Parliament would just be saying: here is the human rights convention and here are some procedural changes to the way it should be applied in the courts of the United Kingdom.

“I think it’s going to be far more substantive than that,” Raab replied. “The title will be a bill of rights.”

But was this really going to be the root-and-branch constitutional reform suggested by that resonant title? Or would it, I asked, just be minor changes to the Human Rights Act — for example, to prioritise freedom of expression over personal privacy? This was Raab’s reply:

As I said, the main articles of the ECHR will remain incorporated in a schedule, but in terms of certain substantive changes we’ll make — to article 8 in relation to deportation of foreign national offenders; the changes that we’ll need to make to accommodate things like reforms we’re making to parole to make sure we can protect the public; and the changes will need to make to strengthen freedom of speech — those things will all be substantive changes.

The interview was not confined to one topic. I asked the justice secretary:

• what “technical support” he had offered Karim Khan QC, the prosecutor of the International Criminal Court, when he visited Khan in The Hague last week.

• why legal aid lawyers would have to wait until October for the additional £135 million recommended last year by Sir Christopher Bellamy and promised by Raab last week.

• what he made of the reaction to his human rights proposals.

You can hear Raab’s responses to these questions on Law in Action, to be broadcast on BBC Radio 4 at 4pm today. The programme — which also includes an interview with the senior judicial member of the Judicial Appointments Commission — will then be available on BBC Sounds.

Juries

However, the more esoteric exchanges that I am reporting here did not make the final cut. Why, for example, did the justice secretary believe “there may be scope to recognise trial by jury” in his bill of rights?

No explanation was offered in his consultation paper. But, as I noted last month, Raab’s junior minister Lord Wolfson of Tredegar QC had offered a justification in evidence to parliament’s joint committee on human rights.

There had been challenges to jury trial in Strasbourg, Wolfson explained. They had failed — so far. But, he added, the concept of jury trial was “somewhat unusual” in many of the 46 states that are parties to the European convention on human rights:

A lot of lawyers in other convention states would find it unusual that people without legal qualifications decide on guilt or innocence; that they do so secretly; that they do not provide reasons.

What the minister seemed to be saying was that the human rights court might be asked to rule on the lawfulness of jury trial at some point in the future. In the meantime, the government wanted to give it statutory protection.

I asked Raab whether this was correct. Was he worried that the Human Rights court might declare the jury system inconsistent with the Human Rights convention?

“You can never say what the Strasbourg court may or may not do in the future,” he replied. “But clearly that would be outrageous.”

Surely that was why he had mentioned it in his consultation paper?

“I think the idea that you can go to 12 of your peers in this country and they will be the arbiters of fact — and, of course, the acquittal rate for juries is far higher than, for example, in the magistrates’ court — shows you why this is not just some quirky part of our history, but actually an essential right which is part of our freedoms. Of course, we’re going to defend that.”

But it didn’t seem to be under attack. Why did he need to put trial by jury into his bill of rights?

“I want the bill of rights not just to incorporate the convention, which is, if you like, a hybrid of the civil law and common law systems. It wasn’t just negotiated by British lawyers, the travaux to the convention show that that is simply nonsense. It was a compromise between the French Napoleonic approach — the civil law approach — and the common law approach. That’s fine. I think it’s a common-sense list of rights, but it doesn't refer to some of the things, or emphasise some of the things, that we hold dear. Jury trial is one of them.”

I was still none the wiser. Wolfson’s explanation of Raab’s plans was the most plausible I had heard — although enshrining jury trial in the bill of rights would not necessarily block a challenge in Strasbourg. But the justice secretary seemed entirely unaware of the explanation given in parliament by his junior minister.

Some people suspected that the government’s real aim was to reduce the availability of jury trial. Raab firmly denied that suggestion:

I think most of the feedback I’ve had has been welcoming that we are reinforcing the role and we certainly will not be diminishing the role of jury trials. We’ll also be respecting the different way it applies in different parts of the United Kingdom. But of course, juries are already recognised — and the role of juries is already recognised — in different bits of primary legislation. The point is to say this is part of our tradition of human rights. It is part of our tradition of freedom. I don’t think that we should be giving succour to the idea that we have an imported model of human rights.

We’ve got things to learn from countries around the world. We should be open and outward looking in that respect. But actually, we also export freedom to the world and we should be proud and shape our constitutional document that embodies our rights around that quintessentially view of human rights that we’ve had from Magna Carta through to the present day, that the great thinkers of this country from Mill to Isaiah Berlin encapsulated. And that’s what these reforms will do.

Listening back to Raab’s answers, it seems he still hopes to create the uniquely “British” bill of rights that David Cameron, then leader of the opposition, called for in 2006. That may be a noble aspiration.

But a British bill of rights would surely not include the European convention, even tucked away in a schedule. It would not try to rebalance individual articles of the convention or need to add rights that were already firmly grounded in the common law. It would not follow an independent inquiry whose terms of reference specifically excluded “potential changes to the operation of the convention”.

As Cameron envisaged in 2006, it would be a major piece of legislation drafted with the help of “a panel of distinguished jurists and other experts”. It would be the basis of a written constitution: a charter on which the government would consult widely “over a number of years” and then, with the benefit of calm reflection and a “lasting consensus”, introduce early in a new parliament.

In other words, it would not be Raab’s bill of rights.