WeeklyWorker

10.11.2022

Fraudulent scheme

With the moral panic over the migrant ‘invasion’ in full swing, Dominic Raab’s bill rises from its bier. Mike Macnair separates the ‘dignified’ and ‘efficient’ parts

The bill to implement Dominic Raab’s ‘Bill of Rights’ proposals, which will repeal the rights and freedoms in the European Convention on Human Rights, was published on June 22.1 Senior public law barrister Lord Pannick promptly said: “If this bill were being sold in the shops, the lord chancellor, in my view, would be at risk of prosecution for false or deceptive advertising.”2

The proposals remained controversial within the Conservative Party: Robert Buckland, Raab’s predecessor as lord chancellor, was a vigorous opponent, on the ground that change was not necessary, and he called it “a cure in search of a problem”.3 On the other hand, Suella Braverman, as part of her leadership campaign, argued that the bill did not go far enough, and it was necessary to bite the bullet and actually withdraw from the European Convention on Human Rights (a treaty wholly separate from the European Union).4 By mid-July it was rumoured that the bill was likely to be withdrawn in favour of “slimmed-down” proposals.

On September 6 Liz Truss chose Brandon Lewis to replace Raab as lord chancellor, and the next day the bill was indeed withdrawn. Truss’s political agenda was to sell neoliberal ‘classic Thatcherism’, with the political focus on the economy and deficit budgets à la Ronald Reagan supposed to produce growth and ‘trickle-down’. In this context, Raab’s Bill of Rights Bill would be a mere distraction (and Buckland was brought into government as Welsh secretary).

But the undead can rise again. Rishi Sunak’s political debts within the Conservative Party brought in Braverman as home secretary and Raab as chancellor on October 25. The abandonment of Truss’s ‘Thatcherite neoliberalism’ version of Conservatism meant a turn to austerity, and hence the economy could not be the main selling point for the new government: it had to be authoritarianism and nationalism. Raab blamed the ECHR and Human Rights Act 1998 for the judicial rejection of the party’s Australian-style scheme to deport refugees to Rwanda, and on November 5 announced that the Bill of Rights Bill was back on the parliamentary agenda.5

Opponents of the bill had already recognised that the return of Raab made this likely: former UK Supreme Court justice Lord Mance delivered a lecture on October 26, which offered a savage criticism of the bill as in large part political rhetoric disguised as legal drafting.6 Meanwhile The Daily Telegraph, in a leader reasserting Braverman’s argument, welcomed the bill as a step towards full withdrawal from the ECHR.7

Labour’s response so far has been a classic piece of ‘parliamentary cretinism’: Stella Creasy proposed in June to introduce a cross-party amendment to enshrine abortion among the rights protected.8 The idea is, of course, to split the Tories. But the point of Raab’s bill is not to make substantive changes to the law (except choking off human rights claims from the poor by raising costs). It is to form the basis of a nationalist culture-wars campaign outside parliament against the ‘liberal elite’ - also known to the Tory far right as “the blob”.9 Proposing ‘liberal’ amendments with a view to splitting the parliamentary Conservative Party will only assist that campaign.

I wrote on Raab’s December 2021 consultation paper, which is the basis of the June Bill of Rights Bill, in January.10 The fundamental point I made is that Raab’s bill is a political trap like Brexit, the Gender Recognition Act, and so on: that is, it aims to force a choice between liberal elitism (defending the 1998 act) and rightist-nationalist populism (Raab’s bill). It is also a political trap, in that defending the European Convention and 1998 Human Rights Act is defending the right of the judiciary to overrule law reforms about tort law which are adverse to the interests of insurance companies,11 or reforms of rape prosecutions which reduce the ability of defendants to run ‘she’s a slag’ defences.12

And Raab’s bill will not abolish ‘human rights’. Rather, it will 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.

Like the British constitution, as interpreted by Walter Bagehot,13 the bill has 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 ECHR, 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.

There are two clear operative components of the bill. The first 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 (clause 15). 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”. The “significant disadvantage” principle is extended in clauses 16‑18 affecting judicial review remedies generally. Acts of public authorities and judicial acts are subjected to special rules to limit the procedural modes of complaint (clauses 12 and 19). Under clause 11 the crown is given the right to join proceedings where it is not already a party - again raising costs. The practical effect of all these changes will be to exclude the poor from making human rights claims, since they will add sharply to costs.

Strasbourg

Second is a set of operative rules in relation to overseas military operations under clause 13, where no rights claims are to be allowed. Since this is contrary to existing Strasbourg Court of Human Rights authority, it will merely lead to damages awards against the UK. Under clause 20, appeals against deportation will require “extreme” consequences to be allowed. Again, the practical applicability is limited; for example, in the Rwanda case one issue was the probability of refoulement: ie, that Rwanda might return the refugee to Iraq, where they would be under threat of death, which is a pretty “extreme” consequence. Clause 24 instructs English courts to disregard interim measures of the Strasbourg Court of Human Rights - merely a response to Strasbourg’s June decision on the case on the Rwanda scheme. We have to ask: would the Tory Party be keen on this if the ‘interim measure’ was to block a nationalisation proposal made by a Labour government …?

Other parts of the bill 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’. The provisions of clauses 1 and 3 reassert the supremacy of parliament in relation to rulings from Strasbourg and declare that the UK Supreme Court is the ultimate arbiter of interpretation - again, nothing but spin, since it would not change current law. Clause 2 would direct the courts to prioritise the text of the 1950 convention over the precedents of the Strasbourg Court. The idea 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 ‘Orbánism’ or ‘Law and Justicism’ in western Europe produces a Strasbourg court staffed by illiberals). If so, the English judiciary might be uncomfortable with being compelled to adopt Raabist interpretations, leading to damages being given in Strasbourg against the UK. I suppose, however, that it might have the operative effect of ‘choking off’ litigants who cannot afford to go to Strasbourg.

The same is true of the provisions in relation to freedom of speech and of the press (clauses 4, 22, and 23). Clause 5 supposedly prevents courts from recognising a “positive obligation” under the ECHR, and requires them to take into account in relation to “pre-commencement interpretations” made by Strasbourg decisions various Tory objections. Clause 6 requires courts to prioritise “public protection” in relation to imprisonment (ie, to give powers back to the home secretary which have been judicialised as a result of ECHR decisions in the 1980s). Since the clause does not directly authorise the home secretary to act irrationally or unjustly, the clause will probably have no effect. Clause 7 requires courts to assume that parliament has struck the right balance in any matter involving conflicts of policy or of ECHR rights. Again, there are sufficient loopholes, so that the result is probably mere rhetoric.

Next comes the declaration of the use of jury trial in clause 9, which asserts that the current very limited use of jury trial is part of the right to fair trial under ECHR article 6. A real, modern bill of rights - one which did the same sort of job as the Bill of Rights 1689 - 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.

By repealing the Human Rights Act 1998, the bill eliminates section 3 of that act, which at present requires the English courts to interpret English statute so far as possible to be compatible with the convention rights. Instead the power to give “declarations of incompatibility” is extended from statutes to “delegated legislation” - rules made by ministers - which under the 1998 act can be simply struck down if they are not human rights-compliant. Similarly, the obligation of ministers introducing legislation to make statements about how far it is human rights-compliant is abolished. Again, the point might be merely to increase costs: parliament can then legislate knowingly (or by fraud by 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.

It is not clear that Raab actually intends 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.

Real bill

The return of Raab and the ‘Bill of Rights Bill’ has so far been met by silence from the left: the Morning Star, Socialist Worker and The Socialist have not responded to Raab’s reinstatement and the resurrection of the zombie bill.

Silence is a bad idea. True, this project may be essentially spin, but, if Raab’s proposals are left unanswered in the hope that they will go away, they will, in fact, define future politics on 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 problematical - holding out illusions in a cold war inter-state instrument 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 1689 legislation, 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; getting rid of anti-strike laws and judicial control over trade unions); restoring trial by jury; replacing the press freedom which permits only speech approved by the advertiser-funded media with genuine freedom of speech and communication; reasserting the right to bear arms; and so on.

Proposing a modern bill of rights would be a far better way to expose the real politics of Raab’s fraudulent scheme than the delusive ‘realism’ of defending the European Convention and 1998 act.

mikemacnair@weeklyworker.co.uk

  1. See bills.parliament.uk/bills/3227.↩︎

  2. July 6 - evidence to the parliamentary joint committee on human rights: committees.parliament.uk/oralevidence/10561/pdf.↩︎

  3. www.lawgazette.co.uk/commentary-and-opinion/former-lord-chancellor-is-out-but-not-down/5113022.article.↩︎

  4. www.politicshome.com/thehouse/article/suella-braverman-conservative-leadership-prime-minister-leave-echr.↩︎

  5. www.dailymail.co.uk/news/article-11394729/Raab-bring-British-Bill-Rights-bid-curb-migrant-crossings.html.↩︎

  6. rozenberg.substack.com/p/mance-eviscerates-raabs-bill; the full text is at www.scribd.com/document/603723617/The-Protection-of-Rights-this-way-that-way-forwards-backwards.↩︎

  7. www.telegraph.co.uk/opinion/2022/11/06/return-dominic-raabs-bill-rights-welcome-first-step.↩︎

  8. www.theguardian.com/politics/2022/jun/29/dominic-raab-says-right-to-abortion-does-not-need-to-be-in-bill-of-rights.↩︎

  9. J Snell, ‘The Blob returns - and there’s a lot to fear’ (Politico November 9) attributes ‘the blob’ idea to Michael Gove.↩︎

  10. ‘Spin, traps and rights’ Weekly Worker January 27 2022: weeklyworker.co.uk/worker/1380/spin-traps-and-rights.↩︎

  11. See AXA General Insurance v Lord Advocate (2011), UKSC 46. This holds 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”.↩︎

  12. R v A (No 2) (2001), UKHL 25.↩︎

  13. W Bagehot The English constitution London 1867.↩︎