With the coronavirus pandemic, a £400 billion debt, levelling up, and Ukraine – events dear boy, events – crowding the political agenda, it is easy to forget that the 2019 parliament might have been identified with major constitutional reform.
In November 2019 – bliss it was in that dawn to be alive – the conservatives’ manifesto had promised a constitution, democracy and rights commission. This was a first in our political history.
Yet despite his 80-seat overall majority, but Brexit still to be completed on 31 December 2020, Boris squandered his chance. It was not the first time, and it will not be the last such exercise in statecraft.
The abandonment of the constitutional commission might have had something to do with letting Sir Geoffrey Cox QC go as attorney general in February 2020, in order to bring Suella Braverman back into government.
But maybe one should look directly to the ministry of justice and the lord chancellor, the affable Sir Robert Buckland QC, who had been appointed by Johnson in July 2019. Perhaps nostalgic for the Wales and Chester circuit of the bar in his eyrie in Petty France, Buckland made two strategic law reform mistakes.
First, in asking Lord Faulks QC to (yes) review judicial review, he let his officials stuff the commission with professional lawyers. They defended their territory.
Second, in asking Sir Peter Gross (a retired court of appeal judge) to review the Human Rights Act 1998, Whitehall excluded everyone with a track record on advocating a UK bill of rights, conservative and non-conservative. The Gross review, run from the ministry of justice, was captured by the human rights community – Europhiles to a man and woman – in the academic and charity sectors.
The Lord Chancellor seems not to have noticed he was serving in a sans-culotte government. Surely we all remember, on 24 July 2019, behind the black door, one Dominic Cummings hovering without a suit; Sir Mark Sedwill, the cabinet secretary, lurked in the metaphorical silk knee-breeches of the mandarinate, with a smile on his face.
Suddenly, in September 2021 (and trying to put the pandemic behind him), Johnson replaced Buckland with Dominic Raab, the Foreign Secretary.
Raab had been a junior minister (twice) in the ministry of justice, but, more importantly, he had worked as a lawyer before politics, and published The Assault on Liberty: What went Wrong with Rights in 2009. On 14 December 2021, and politely burying Sir Peter’s 580-page report (with recommendations visible only through a microscope), Raab told parliament there would be a consultation on a British bill of rights. This is due to end on 8 March 2022. He told the Commons:
“The Government’s proposals for a Bill of Rights will strengthen this country’s proud tradition of freedom, curtail abuses of the human rights system and reinforce the democratic prerogatives of elected Members in this House over the legislative process in respect of the expansion of human right. Above all, we will restore common sense to the system.”
So, where are we on a bill of rights? First, the Government appears committed to replacing the Human Rights Act 1998. Second, the human rights will exist in domestic law (which they do not do at present). Third, British judges will be the final arbiters of human rights. And fourth, there will be more, not less, human rights. So far, so good.
But it is not clear how Britain will continue relating to the Strasbourg human rights court. The UK is what is called a dualist state. It can keep its domestic law in one compartment. It does not need to worry about international law.
The UK will remain a member of the Council of Europe. It will not denounce the European Convention on Human Rights. But will it be able to push the Strasbourg judges out of the UK?
I have suggested in my consultation response that our Supreme Court should opine whether a case should go on to Strasbourg; saying yes might encourage the human rights judges to hear it; saying no might deter international appeals originating in the UK.
The biggest problem in the Government’s current thinking is its failure to break with the 1950 convention. After the Second World War, it was reasonable to see states as the violators of human rights. Seventy years later, we now know about terrorism, domestic and international. People are abused by others in civil society in many ways. Human rights are, or should be, invoked.
The state should not add to this grief (it has negative obligations), but should public authorities be vested with positive obligations to tackle every social and personal ill?
The Government, faced with a labour opposition able only to defend its Human Rights Act 1998 because it is theirs and a steady stream of absurd human rights stories, has a great deal still to do,