Spin, traps and rights
Left responses to Raab’s proposals - in so far as they exist - have simply been to defend the 1998 Human Rights Act and the European Convention. A bad idea. Mike Macnair proposes a real Bill of Rights instead
On December 14 2021 the lord chancellor, Dominic Raab MP, unveiled both the report of the ‘Independent Review of the Human Rights Act’ (which had been submitted to the government in October) and, overshadowing it, the government’s actual proposals for replacing the Human Rights Act 1998 with a ‘modern Bill of Rights’.1
The ‘independent review’ can be disregarded, since its main conclusions were that very little should be done, the only proposal of substance being that there is a need to restrict extraterritorial jurisdiction (ie, to block the use of human rights claims to question the UK army’s terrorist operations in Iraq), but that this requires action at intergovernmental level. The ‘Bill of Rights’ proposals are a lot more significant, and invite the opposition to enter into a culture-war to ‘defend human rights’, in which the Tories will be able to pose as populist defenders of ‘democracy’ and ‘common sense’.
This is a political trap for two reasons. Like Brexit, the Gender Recognition Act, and so on, it aims to force a choice between liberal elitism (defending the 1998 Act) and rightist-nationalist populism (Raab’s proposals). Secondly, defending the European Convention and 1998 Human Rights Act is also defending the right of the judiciary to overrule law reforms about tort law which are adverse to the interests of insurance companies,2 or reforms of rape prosecutions which reduce the ability of defendants to run ‘she’s a slag’ defences.3
(It is necessary, because of the confusion sedulously promoted by the advertising-funded media, to reiterate yet again that the European Convention on Human Rights is separate from the European Union, and the European Court of Human Rights in Strasbourg is separate from the (EU) European Court of Justice in Luxemburg.)
Raab’s proposals are not to abolish ‘human rights’. Rather, they are to preserve them for the benefit of corporations and the rich, while limiting them in certain ways to reduce access to the court for the poor by increasing the costs of proceedings, and to get rid of decisions made in the last 20 years that are unacceptable to the editorial line of the Daily Hate Mail. ‘Harmsworth rights’ (from the trust for the Harmsworth family which controls the Mail) in place of ‘human rights’.
Like the British constitution as interpreted by Bagehot,4 the proposals have a ‘dignified part’ and an ‘efficient part’. The ‘dignified part’ is, essentially, the spin which is designed to allow the government, on the one hand, to claim that the UK will not be departing from the 1950 European Convention on Human Rights, and to assert the existence of a ‘British tradition of rights’ to which we are to return; and, on the other, to set up the ‘culture wars’ framework for the claim that the Human Rights Act in its present form mainly protects criminals and terrorists and wastes the time of public officials. It does not have operative consequences. The ‘efficient part’ is the much more limited set of operative consequences.
One might naturally suppose that the whole of Chapter 4 (pp56-87) is the ‘efficient part’. But in fact quite a lot of this is still spin, rather than operative. Take, for example, the proposal at p61 that “there may be scope to recognise trial by jury in the Bill of Rights …” In reality, the scope of trial by jury has been massively reduced since 1940, and continues to be reduced. And it didn’t take long after this proposal was published for the government to adopt the opposite view of trial by jury in the case of the acquittal of the Colston Four. Such a proposal would never have been more than ‘dignified’ spin.
There are three clear operative components of the proposals. The first is that “the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers (emphasis added) through injunctions and other relief” (p64, Question 4). The way this is formulated betrays its clear purpose: it is to protect the right of the Conservative press barons to run smear stories, mainly about sex, without fear of interference from claims to the Convention right to private and family life.
The second is ‘reforms’ which aim to increase costs and thereby choke off claims by the poor. The main proposal here is the introduction of a “permission stage” for human rights claims (para 219-223). This would transfer to the claimant the burden of showing that they have suffered a “significant disadvantage” - as opposed to the present right of the Crown to apply for claims to be struck out as “frivolous or spurious”. Another step in the same direction is to require litigants to exhaust common law and statutory remedies before making a human rights claim (paras 224-227). This approach, which copies the Strasbourg court’s requirement that claimants exhaust domestic remedies before going to Strasbourg, makes no sense at all in an internal-UK context: the general approach of civil procedure is that claims should be raised as early as possible, not as late as possible. In both cases, the practical effect will be to exclude the poor from making human rights claims, since both the permission stage and the ‘exhaustion of rights’ will add sharply to costs. The operation is the same as Vince Cable’s wizard wheeze to destroy employment tribunal applications by raising the tribunal fees.5
The third operative element is obscurely technical but of considerable importance in principle. Its purpose is a general “Henry VIII clause”. In 1539 the Tudor monarch got an act of parliament passed to give royal proclamations the same effect as acts of parliament: it would then, in theory, be less necessary to have meetings of parliament, or for these to spend time arguing about laws, rather than doing what governments wanted them for - approving taxes. The act was repealed in 1547; but it has given its name to “Henry VIII clauses” - powers contained in acts of parliament to alter acts of parliament by “secondary legislation”, meaning regulations made by the relevant minister.
The Tories have a real doublethink attitude to “secondary legislation”. On the one hand, the powers under European Union law to alter acts of parliament by “secondary legislation” were one of the objections of the Brexiteers to the EU as anti-democratic. On the other hand, the actual legislation to implement Brexit contains extraordinarily extensive “Henry VIII powers”.
Within this particular set of ‘bill of rights’ proposals, the internal conflict in Tory ideas remains present. On the one hand, the proposals raise objections in principle to the alteration of English law by secondary legislation in order to comply with decisions that it is, in its present state, incompatible with human rights (paras 253-258). On the other hand, closely connected proposals (paras 246-251) would remove the right of courts to strike down secondary legislation which is incompatible with human rights: thus giving regulations made by ministers the same status as acts of parliament.
The ‘Independent Human Rights Act review’ also considered this issue (chapter 7) and reached the conclusion that it would be odd if courts could strike down secondary legislation which is inconsistent with primary legislation (which has been possible since the 17th century) but could not do so, on the ground of inconsistency with the Human Rights Act.
The Tory government, of course, does not care about radical inconsistency in its proposals, as long as they are going to be backed by the Tory press. Witness, for example, the simultaneous Tory-press cancel campaigns against supposed ‘anti-Semites’ and the same press’s opposition to ‘cancel culture’ when it is applied to defenders of the glories of the British empire, or to supposed ‘transphobes’. ‘Freedom of speech’ for these people means freedom of conservative speech only. So, too, ‘Henry VIII powers’ to reverse EU regulations, not to enforce them; to overthrow human rights rulings, not to implement them.
Other parts of Chapter 4 of the government document purport to propose substantive changes to the Human Rights Act, but in fact merely tinker with it in order to allow the government to posture as defenders of a ‘British tradition’ without, in fact, making real operative changes. They are, in Bagehot terms, pseudo-efficient; but, in reality, dignified.
I have already referred to the proposal to ‘recognise’ a ‘qualified’ right to trial by jury (paras 202-203) - which has been rapidly followed by Tory attacks on trial by jury in the Colston Four case. A real modern bill of rights, one which did the sort of job the Bill of Rights 1689 did, would restore the right to trial by jury in civil and criminal cases. The point of the government’s proposal is not to actually defend or restore trial by jury, but merely to allow the Tories to posture as English nationalists. Near the end of the proposals, paras 309-317 propose legislation to reassert the supremacy of parliament in relation to rulings from Strasbourg - again, nothing but spin, since it would not change current law.
Similar declaratory provisions would direct the courts to prioritise the text of the 1950 Convention and the travaux préparatoires, the discussions in its drafting process, over the precedents of the Strasbourg Court (paras 190-197) and declare that the supreme court of the UK (UKSC) is the ultimate arbiter of interpretation (paras 198-202). The idea of the first provision is to ‘roll back’ the ECHR to its imagined Conservative and Christian Democrat origins. It is far from clear, however, that the Strasbourg judges would be willing to follow suit (unless a wave of Orbanism or Law and Justiceism in western Europe produces a Strasbourg court staffed by illiberals). If so, the English judiciary might be uncomfortable with adopting Raabist interpretations, only to lead to decisions against the UK in Strasbourg. This, I suppose, might have the operative effect of ‘choking off’ litigants who cannot afford to go to Strasbourg.
It is similarly proposed to make some change (as yet unidentified) to section 3 of the 1998 Act, which at present requires the English courts to interpret English statute so far as possible to be compatible with the Convention rights. The preferred change seems to be to require that the interpretation be “consistent with the wording and purpose of the legislation” (paras 233-248). The first branch of this test makes no actual change in the law at all. The second branch (italicised) would require the court to ask what the “real purpose” of parliament was. Is it what the minister said in the debate? The Commons minister, or the minister in the Lords? Or would it be admissible evidence that some sacked special adviser (Spad) was prepared to swear on oath that there was an ulterior purpose (for example, that government should seem to ‘do something about’ a controversial issue, but not actually change the law)? What should be the attitude to amendments passed against the government’s will, or made by concession to allow passage of the bill?
Analogous provisions are proposed by paras 259-261, which would alter in some undisclosed way ministers’ current obligation to accompany bills with statements that they are compatible with the Human Rights Act rights, with a view to “creating space for innovative policies”. Again, the point might be merely to increase costs: parliament can then legislate knowingly (or by fraud on the part of the minister) inconsistently with the convention rights, but safe in the knowledge that the individuals targeted will not be able to afford to challenge the legislation in court. Or para 270-276, which would give public authorities a defence in human rights proceedings where their conduct was “required by the will of parliament” - but which will? This “will” reappears in para 282-291, to be the final determination in relation to ‘qualified’ rights and ‘proportionality’. Analogously, the proposal at para 292-296 in relation to “rights and responsibilities” (on which more below) gives parliament the right to “authoritatively determine” the balance between rights and responsibilities.
To give a concrete example of the issue, Stuart Anderson showed some years ago that section 14 of the Law of Property Act 1925 was a concession made by government to allow the 1922 bill (later ‘consolidated’ in 1925) to pass the Lords against the prior opposition of senior judges to the scheme proposed by the draftsman, Benjamin Cherry. But the judiciary have in practice interpreted the act as if this was not the case, taking as gospel the narrative of the act’s purposes promoted by Cherry and his associates: and this pseudo-story of the purposes of the act is taught in English law textbooks.6 The difference between the intention of government (in this case actually the intention of the technician to whom government had delegated drafting) and the intention of parliament, makes the issue of the “purpose of the legislation” seriously slippery.
This slippery nature of interpretation as such has been a matter of debate among lawyers and legal theorists for at least 500 and possibly 1500 years.7 It has the consequence that legislation which purports merely to change the weighting of factors in interpretation cannot bind judges, as direct substantive or procedural rules maybe can; but can only work as spin affecting judges’ general ideological commitments.
It is not clear that the proposers of this bill actually intend anything more than the spin: aimed at wasting parliamentary time in the immediate term and judicial time in the long term, with a view to short-term electoral advantage through promoting nationalist right-populism.
Chapters 1-3 of the proposals do not pretend to be proposals for change. Chapter 1 is, essentially, a party-political publication on behalf of the Conservative Party’s view of the issues of rights, the British history of rights, and the European Convention. A few vignettes:
The UK’s tradition of human rights and civil liberties stretches back over the centuries. In 2015 we celebrated the 800th anniversary of the sealing of Magna Carta at Runnymede. While a great deal of the document is concerned with the immediate dispute between King John and the barons, it contains within it the seeds of the freedoms enjoyed by all of us today: jury trial, legal certainty, the rule of law, and habeas corpus, (the right not to be detained without charge indefinitely or for protracted periods). (para 13).
On jury trial in particular (which in 1215 appeared as something opposed to the ‘trial by peers’ which Magna Carta guaranteed), this is a startling piece of spin; on habeas corpus it is plainly anachronistic; and so on. Absent is “to no man will we sell, to no man deny justice” - unsurprisingly, since the whole project of Raab’s operative proposal is exactly to sell and deny justice.
On 1689, we are told that
the Bill of Rights (in England) and the Claim of Right 1689 (in Scotland) represented a leap forward in recognising the civil liberties and political freedoms that are almost universally accepted today: free elections to regular parliaments, a ban on cruel and unusual punishments, free and fair trials, freedom of speech in Parliament, and no suspending or dispensing of the laws, without Parliament’s consent. Importantly, these rights are generally framed as limitations on the government, not as rights pertaining to individuals. This would prove to be a distinction between rights as conceived in a UK context, and as they would develop in time on the Continent. (para 16)
The ‘free and fair trials’ in the Bill of Rights concerns merely jury-packing, the subsequent development coming from the Treason Trials Act 1696. Missing are the ban on a standing army without the consent of parliament, and its converse, the right of the Protestant subjects to have arms for their defence. Missing, too, is “the right of the subjects to petition the king”. Neither of these last two fit with the claim that “these rights are generally framed as limitations on the government, not as rights pertaining to individuals”. The point here is spin, to assert the existence of an English national tradition of approaching rights counterposed to the ‘continental’ tradition.
We are told that “Famously, in Somerset v Stewart in 1772, Lord Mansfield found that the law did not permit someone to be forcibly removed from England and sold into slavery” - a statement flatly false, since what Mansfield ruled (under considerable pressure) was that the status of slave did not exist in English law, so that where a slave was brought into England, he became a semi-free person analogous to an indentured labourer and hence could not be removed from England (while not becoming fully free).
There is indeed an English tradition of rights. But governments, both Labour and Tory, and courts, have gradually taken away this tradition. They have done so by allowing a “free market in legal services” to develop since the early 19th century, concealed since 1945 by legal aid, but now transparently amounting to the sale and denial of justice, and ‘Bleak House’ (inordinate expense and delay) in ordinary judicial proceedings. They have done so by extending statutory police powers of arrest and inventing powers to detain without arresting, which become completely arbitrary, and by the gradual erosion of trial by jury. They have done so by ‘reforms’ to local government which have taken away most of its powers and made councillors mere puppets of their legal advisors. They have done so by the Firearms Acts and related legislation; and so on. The Raab proposals do not propose to restore this English tradition of rights at all, but merely to pretend continuity with it.
Under the headline ‘Different approaches to rights’, a box on page 10 of the document tells us, among other things, that
Karl Marx presented a critique of the Rights of Man proclaimed during the French Revolution in his 1843 article On the Jewish Question. Marx was amongst the early critics of the liberal tradition of civil and political rights, like the right to free speech, a fair trial, freedom of worship and habeas corpus, reflecting what Isaiah Berlin defined as ‘negative liberty’. In the 20th century, amidst the struggle of the Cold War, a movement grounded in the communist, socialist and social democratic traditions began to push for recognition of economic, social and cultural rights, including specific rights to education, healthcare and housing.
Classic selective quotation of Marx - given, for example, his 1842 articles on freedom of the press.8 And the box concludes that
Whilst the government proposals will fully protect the fundamental civil and political liberties as individual rights, we also wish to preserve proper democratic oversight over the development and realisation of economic and social public policy.
As AH Clough put it in the mid-19th century, “Thou shalt not kill, but needst not strive officiously to keep alive”.9
Chapter 2, ‘The international context’, is a polemic at length against the ‘living instrument’ interpretation of the European Convention, arguing, like US originalists on their constitution, that this instrument should be read down to its original meanings as visible from the text and the travaux préparatoires. There is further comparative discussion of other countries’ bills and charters of rights, spun in favour of the government’s views.
Chapter 3, ‘The case for reforming UK human rights law’, is more polemic at length. If we compare it with the ‘Independent Review’ it is clear that the government’s version selects those cases which can be used to run a Daily Hate Mail-style critique of the Act, and then uses those cases selectively, while the ‘Independent Review’ makes judgements about the frequency of difficulties which cast doubt on such arguments. We may compare Boris Johnson’s ‘straight bananas’ and suchlike stories from his time as a Telegraph Brussels correspondent.10 Or, perhaps - going back to an issue referred to at the beginning of this article - the rapists’ rights campaigns in the Tory press which radically overstate the frequency of false rape accusations, by playing up their prominence in publication, in order to prejudice jurors against rape prosecutions.
The primary feature to be drawn from this document is thus its character as dishonest spin from beginning to end, which buries in this nationalist-populist spin operative proposals which preserve ‘human rights’ for the benefit of corporations and the rich, but deny them to the poor.
Para 302-308 of the proposals assert that rights come with responsibilities. This claim - for what it is worth - is entirely justified. For example, my right to drive a car is contingent on my doing so with reasonable care and in compliance with road traffic regulations.
To be a little more controversial, the right to private property in land is contingent on responsibilities. Recognised in existing law, negatively, not to use it so as to pollute your neighbour’s property; positively, to make sufficient use of it that it is not squatted. There is arguably an inherent obligation on the owner to contribute through taxation to (at a minimum) the common defence, the maintenance of the infrastructures the owner uses to access the land, and the costs of the legal order which guarantees the owner’s rights against other people who might want to take the land.11 Hence perhaps the First Protocol, Article 1 (“A1P1”) right to “peaceful enjoyment of possessions” should be read as “subject to not making tax avoidance arrangements which cast the burden of taxation on other taxpayers” ...
This is not, however, what the Raab proposals mean by the claim that rights come with responsibilities. For them, what is concerned is that criminal conduct should in itself deprive you of rights (though probably not the A1P1 rights). In substance, what is at issue is the Cameron administration’s fight with the Strasbourg court over the deprivation of prisoners’ right to vote.12 In this case, the right to vote is plainly fundamental to a democracy, and cannot be characterised as a “positive right” like the right to education.
There is a case for denying fraudsters, and, or, those who engage in electoral fraud, or who as public officials violate the rights of others, from the right to vote or to stand for election to parliament. But there is no rational ground for the mere sentence of imprisonment (for example, for non-payment for a TV licence or of a fine) to deprive people of the right to vote.
This issue is, like another in a different bit of proposed legislation - the proposal for photo-ID to be needed to vote13 - a Tory borrowing from the US Republican Party, intended in future to serve as a means of large-scale disenfranchisement and gerrymandering. Ancient Athenian law made it a crime to propose an unconstitutional bill in the Assembly.14 It might not be a bad idea to legislate to deprive of the right to vote and to stand for election those public officials who propose fraudulent legislation for the purposes of gerrymandering and exclusion ...
A real bill of rights
The response of the left to Raab’s proposals - so far as it exists at all - has been simply to defend the Human Rights Act. Socialist Worker, The Socialist and Solidarity were presumably all caught out - as this paper was - by Raab’s proposals coming out shortly before the Xmas break. The New Statesman carried a pre-emptive pre-appearance attack on Raab by Paul Mason.15 The Morning Star offers a standard liberal response: “Raab’s Human Rights Act reforms will ‘rip families apart’, campaigners warn”. The Young Communist League’s Challenge was a bit better at seeing a constitutional issue, headlining: “Raab’s human rights reforms criticised as a government ‘power grab’” - but in fact merely quoting Liberty and lawyers.16 Jake Richards on LabourList begins by appealing to Martin Luther King (when taken out of context, this is usually a bad sign) to argue that “The battle against Raab’s ‘Bill of Rights’ will be hard-fought - but it is necessary”. Richards opposes the defence and extension of trial by jury on the ground that it will increase delays, rather than imagining how it might be restored (of course, Raab only raises the issue to play the nationalist card).17
Silence is a bad idea. The fact that this project may be essentially spin does not alter the fact that if Raab’s proposals are left unanswered in the hope that they will go away (as long as we focus on “bread and butter issues”) they will, in fact, define future politics about the issue. This was the way the Corbynistas led the left and Labour to catastrophic defeat.
Defending the 1998 Act and the European Convention is equally problematic. As I said at the outset, tempting as it is, it is like remainer politics - holding out illusions in the EU. Here, holding out illusions in a cold war inter-state instrument which has been used against socialisation and against law reforms favourable to women and to the victims of industrial illnesses.
We should counterpose to Raab’s proposals an actual modern Bill of Rights - one which, like the Bill of Rights of 1689, began by declaring illegal the main lines of the policy of recent governments. In this case, what would be at issue would be a Bill of Rights to restore democratic rights - the right to self-government both in the localities (local councils) and sectoral organisations (demanagerialising universities, schools, and so on); restoring trial by jury; replacing the press freedom which permits only speech approved by the advertiser-funded media with real freedom of speech and communication; declaring the illegality of the “kettling” decisions; reasserting the duty of universal military training and service and the right to bear arms; and so on. Proposing a real ‘modern bill of rights’ would be a far better way to expose the politics behind Raab’s fraudulent scheme than the delusive ‘realism’ of defending the European Convention and 1998 Act.
The independent Human Rights Act review 2021 CP 586; Human Rights Act reform: a modern bill of rights 2021 CP 588.↩︎
AXA General Insurance v Lord Advocate  UKSC 46 - holding the actual reform to be within the “margin of appreciation” but the legislation in principle capable of being a “taking” of the company’s “possessions”; R (Aviva) v Secretary of State for Work and Pensions  EWHC 3118 (Admin).↩︎
R v A (No 2)  UKHL 25.↩︎
W Bagehot, The English constitution London 1867. In spite of ‘English’ in the title, the book is actually about the UK constitution as it existed at the time.↩︎
Cf. R (Unison) v Lord Chancellor  UKSC 51; Macnair ‘Rhetoric and political realities’ Weekly Worker August 3 2017.↩︎
Anderson, Lawyers and the making of English land law Clarendon 1992, chapter 8 esp pp300-302; cf also J Roche ‘Historiography and the Law of Property Act 1925: the return of Frankenstein’ Cambridge Law Journal, Vol 77, pp600-629 (2018).↩︎
500 years: I Maclean Interpretation and meaning in the renaissance: the case of law Cambridge UP 2008. 1500 years: eg, A Berger ‘The emperor Justinian’s ban upon commentaries to the Digest’ Bulletin of the Polish Institute of Arts and Sciences in America Vol 3 pp655-696 (1945). Still current: eg RA Posner The Problems of Jurisprudence Harvard UP 1993.↩︎
MECW Vol 1, pp132-181.↩︎
Cf eg, M Macnair ‘The case of the careless purchaser’ in B Spagnolo and J Sampson ed Principle and pragmatism in Roman law Hart 2020 chapter 3.↩︎
Information available at commonslibrary.parliament.uk/research-briefings/cbp-7461.↩︎
Eg, JD Lewis ‘Constitution and fundamental law: the lesson of classical Athens’ Social Philosophy and Policy Vol 28, pp25-49 (2011), p32.↩︎
‘Scrapping our human rights is Brexit 2.0 for Raab and Johnson’ December 10.↩︎
Morning Star December 14: morningstaronline.co.uk/article/b/raab-human-rights-act-reforms-will-rip-families-apart-campaigners-warn; Challenge December 15: challenge-magazine.org/2021/12/15/raabs-human-rights-reforms-criticised-as-a-government-power-grab.↩︎
January 7: labourlist.org/2022/01/the-battle-against-raabs-bill-of-rights-will-be-hard-fought-but-it-is-necessary.↩︎