The Joint Committee on Human Rights Questions the Justice Secretary
Justice Secretary Dominic Raab finally appeared in front of the Joint Committee on Human Rights (JCHR) on Wednesday 14th December, 5 months later than originally scheduled. Chair Joanna Cherry questioned Raab on his legislative agenda and the future for his Bill of Rights Bill (the Bill), more commonly referred to as the “Rights Removal Bill”. The Bill is set to face further delays according to recent reports – read on to find out what Raab had to say.
Much old ground was raked over by the Committee, but there were several key points of note; Raab gives up the pretense of placing importance on public consultation, talks of the relationship of the Bill and new immigration legislation, refuses to commit to staying in the European Convention on Human Rights (ECHR), completely misrepresents what positive obligations actually are and how they protect us all, undermines the universality of rights and disregards the concerns of Northern Ireland, Scotland and Wales.
Overall, Raab’s answers to the JCHR have done nothing but assure us that The Rights Removal Bill continues to be an unashamed power-grab, designed to place this Government far from anything resembling accountability.
Lack of Evidence for the Bill
Raab refused to be drawn on accusations from JCHR Chair, Joanna Cherry that the Bill is his “baby” and doesn’t have popular support – instead he pretended that Cherry was trying to flatter him by suggesting he is the sole driver behind this piece of legislation. Raab rubbished the Independent Review of the HRA, saying “it’s not a secret that I think we should go further” than what the Review recommends. He blamed the overwhelmingly positive response from the consultation about the HRA and against the Bill on the views of “the sector”. We think he means us, charities and solicitors who support an “elastic interpretation of rights”, who he pits against the general public who apparently want to restore “common sense” to human rights legislation.
Quite aside from the fact that Raab is choosing not to believe that the over 12,800 people who responded to the consultation count as the general public, what about the members of his own party who have roundly rubbished the Bill? Robert Buckland MP described the Bill as “a cure without a problem” and “worse than useless”. Julian Smith MP described it as “wrong-headed and regressive”. Even Nigel Farage remains “totally unconvinced”. As Cherry said, “the lack of enthusiasm from your colleagues.. is it not a bit embarrassing for you?” Well, quite. Even those who we might not traditionally think of as enthusiastic human rights advocates recognise the Bill for what it is; unevidenced, unprincipled and unworkable. Read more about the Human Rights Act reform process here.
The Bill and Immigration Legislation
Raab was questioned on the relationship between the Bill and potential new immigration legislation, with Cherry trying to highlight some of the backdrop within cabinet around this Bill. Raab referenced the tragedy of those who lost their lives in the Channel this week, saying the Bill “will be human rights-enhancing” and deter those who seek to come to the UK. Raab continued on to say that “new immigration legislation should be self-standing”, but that the Bill may help with the ‘small boats crisis’ in four ways. Raab doesn’t go into detail on how exactly these parts of the Bill will assist with deterring small boats.
- Firstly, Raab stated the Bill will assist in the approach to interim orders. He doesn’t explain how but for clarity this is the part of the European Convention on Human Rights which allows the European Court to issue states with orders to take (or not take) certain steps while a legal case is ongoing. This is the clause which meant the UK Government’s Rwanda flight was stopped. It’s therefore clear why this Government isn’t happy about interim measures but it’s not clear how the Bill in any way changes this. What we think Raab is inferring, that the Bill would stop Rwanda flights being grounded by the European Court, is simply not the case. No domestic law can change international law, and the Bill simply restates what is already in place, rather than any significant change that would help. You can read more about interim measures on our blog.
- Secondly, Raab states the Bill will repeal Section 3 of our Human Rights Act. This is the part of the Human Rights Act that allows other laws to be interpreted in a rights-respecting way. He asserts that Section 3 is stopping immigration legislation being used in the most appropriate way – he continues to not be able to present any solid, recent evidence of this. In fact, the Independent Review of the Human Rights Act concluded the issue around section 3 is not the law but the damaging perceptions about it, “…there is no substantive case that UK Courts have misused section 3 or 4 ... There is a telling gulf between the extent of the mischief suggested by some and the reality of the application of sections 3 and 4.” (IHRAR, Chapter 5, paragraph 182). You can read more about this in our briefing on Section 3.
- Raab reminded us that the Bill will “curb creative interpretations” and innovation from the judiciary and will instead reaffirm the primacy of Parliament. In reality, the raft of Hostile Environment legislation already introduced by successive Governments mean that private and family life (Article 8) protections for migrants and refugees have been severely reduced. We know that the Bill will further reduce not only the rights of vulnerable migrants, but everybody. You can read more about the Bill’s impact on Article 8 here. You can read more about Clause 7 which says that the “greatest weight” must be given to the intent of Parliament here.
European Convention on Human Rights (ECHR)
The questioning moved on to the ECHR, and Raab’s answers make clear this Government's aim to distance itself from the Convention. Raab could not convincingly assert the UK Government’s intention to stay in the Convention, and stated that “we rule nothing out, nothing is off the table for the future”. This is a shift from previous assurances from Raab that the UK will absolutely remain in the Convention. When Cherry points this shift out to Raab, Raab replies, “We have a new Govt, a new PM” and we are facing “an acute crisis in the channel”. “We want to stay within the Convention, no one wants to trip up out of it but we have to put the national interest first.” It seems that what many of us foreseen, that the Bill was step one and leaving the Convention was step 2, may indeed be the plan and the vehicle to get us there will be phrases like ‘crisis’ and ‘national interest’.
Raab was questioned by the Committee on the Bill’s changes to positive obligations – the duty on all public bodies to protect us from serious harm. On hearing Raab’s evidence, you could be forgiven for thinking that positive obligations are a specific duty on the police solely used to protect the lives of criminals or “gangsters” This is so far from the truth and the use of inflammatory language and extreme examples was pointed out by Committee members.
As Bell Ribiero-Addy MP pointed out, “I think you’ve given some quite extreme examples there. Through what you’ve said today it strikes me that you don’t necessarily feel rights should apply to everyone equally?” We agree.
Raab completely misrepresents the importance of positive obligations in protecting everybody, regardless of background or alleged criminal activity. We know that positive obligations are the foundation of safeguarding, about stepping in to save lives and prevent serious harm to often the most vulnerable and marginalised people. Every time a woman fleeing domestic violence is offered secure accommodation by the state, every time a child is protected from harm by a social worker or a teacher, every time a nurse challenges a DNAR order placed on a disabled person’s file without consultation – this is positive obligations at work. Raab conveniently avoids mentioning any of this and instead talks about positive obligation solely through the lens of the police’s operational priorities.
When Ribiero-Addy asks, “Are the laws not there to ensure that all of these bodies act in the way they are meant to and that the courts enforce that action?” And Chair Cherry elaborates explaining that in the case of John Worboys, without the HRA positive obligation to investigate the role of the police, common law would have simply meant how the police acted was up to them. This cannot be what Raab is suggesting, Cherry checks, “so what you’re saying is that the Bill will discourage litigation against the police? Thanks for clarifying I have a note of that”
The Bill is once again exposed as a power-grab, designed to reduce the accountability of this Government. You can read more about positive obligations, how they work and what the Bill’s changes will mean in our briefing here.
Permission Stage & Damages
Raab continued to explicitly state the intention of the Bill to reduce accountability when speaking about permission stages & damages (clauses 15 and 18 of the Bill). Raab was unable to provide a coherent answer on why ordinary people should be disadvantaged by the addition of a new permissions stage when questioned by Lord Alf Dubs, and restates his intention to clamp down on “litigation culture”. Raab misunderstands the universality of rights that is so simply summed up by Lord Alf Dubs; “human rights apply to everyone.” This Bill aims to undermine the cornerstone of rights, targeting marginalised groups and in the process reducing rights protections for us all.
Good Friday Agreement
The questioning moved on to ask Raab about the difficulties the Bill causes for the Good Friday Agreement or the Belfast Agreement in Northern Ireland. The Agreement which ended decades of conflict and brought peace and stability. When Cherry reads out the very clear view of the Northern Ireland Human Rights Commission that the Bill is incompatible with the Good Friday Agreement, Raab refuses to accept it. In complete contradiction to his earlier comments on the ECHR, Raab states the Government’s intention is to remain party to the Convention, therefore negating any problem. Cherry points this contradiction out, asking Raab, “But you said earlier withdrawing from ECHR is not off the table? That would be a big problem for the Good Friday Agreement, would it not?” Raab replies, “We can’t say what will happen in the future” and that he will not “engage in hypotheticals.”
You can read the concerns of the Northern Ireland Human Rights Commission on the Bill of Rights Bill here. It’s of serious concern that Raab appears to be disregarding the views of experts in Northern Ireland when a peace process is at stake.
Raab’s Bill of Rights Bill continues to be of concern to all of the devolved nations. At the Committee, Raab repeated his view that “it is a UK piece of legislation which I believe will benefit everyone across the UK”, but Cherry highlights that the Bill has been met with significant opposition in Scotland, Wales and Northern Ireland. Raab committed to seeking legislative consent of devolved nations, but refused to commit to respecting that consent should nations withhold it. This attitude here is reminiscent of his earlier dismissal of public consent and response to the consultation.
Write to Your MP
Raab told the JCHR that our Human Rights Act “does not have wide support”. He says that “During my time as Foreign Secretary no one ever said to me ‘do you know what we love, the fact that the UK has the Human Rights Act”. Well let’s prove him wrong. We don’t have a “Write to Raab” campaign, but we do have “Write to your MP” template letters here. Write to your MP today, and tell them why it is so important to protect our Human Rights Act. Raab continues to try to pull the wool over our eyes – but we know that our Human Rights Act is important to every one of us, every day, in allowing us to live a life of freedom, dignity and safety.
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