The Bill of Rights Bill is back, but it won't help the Tories one bit

The Bill of Rights Bill seems to be particularly closely associated with the current Deputy Prime Minister, Secretary of State for Justice and Lord Chancellor, Dominic Raab. Mr Raab introduced it when he was a minister in Boris Johnson’s Government. Then Liz Truss swept both him and it away, consigning Mr Raab to the back benches and shelving his bill. And now Rishi Sunak has restored Mr Raab to office and, it appears, has brought his bill back to life.

It's not exactly a solid, stable way of dealing with constitutional legislation of the first importance on matters as fundamental as our basic rights, is it?

Regular readers of this column may be surprised to learn that I thought Liz Truss was on to something when she abandoned the bill. I don’t recall having a single positive thing to say about Ms Truss while she was a candidate for the Tory party leadership this summer or while she was Prime Minister. But, as they say, even a stopped clock is right twice every day – and even Liz Truss did not get everything wrong.

This is not because Dominic Raab is mistaken about the fact that the Human Rights Act needs to be reformed: it is because his on, off, and on again Bill is, given the point we have reached in the electoral cycle, highly unlikely to pass in its current form. It will sail through the House of Commons. But it will be eviscerated in the House of Lords. And, in crude electoral terms, the fight is not worth the candle.

There is nobody in the country who is thinking about voting Conservative if only the party would finally get around to reforming the Human Rights Act. Yet there are thousands of potential Conservative voters who could be put off voting Tory at the next General Election because the Government finds itself bogged down in a fight with the human rights lawyers about the finer points of legal process which most punters could not care less about.

The bill will struggle in the House of Lords because it is a compromise and, on matters as fundamental as our basic rights, their Lordships do not like compromise. The bill is a trade-off between two positions, each of which is attractive to a different segment of the Tory Party.

The first position is the radical one: it says that something profound has gone horribly wrong with our human rights law, to the point that we are no longer ruled by a government and parliament accountable to and elected by the people. Instead, a self-appointed cabal of do-gooding lawyers has inserted itself above Parliament and it is these lawyers who ultimately call the shots. It is these lawyers who tell us that prisoners must be permitted to vote, that foreign criminals cannot be deported, and that asylum claims cannot be processed in Rwanda, to give just three examples.

If you perceive these matters as problems, there is only one solution: namely, to withdraw the UK from the European Convention on Human Rights. For the court that has blocked, thwarted, and frustrated government policy on prisoners, deportation, and asylum is the European Court of Human Rights, in Strasbourg.

Mr Raab’s Bill of Rights Bill will not fix that problem because, under his bill, Britain’s human rights laws will remain under Strasbourg’s overall supervision. I suspect this may be why Ms Truss abandoned it.

The second position is more modest. It accepts that the European Convention is here to stay but would tweak the ways its provisions are given legal effect in the UK. This view understands that modern human rights law is about balance, not absolutes.

How do we balance the views of UK judges against Strasbourg’s sometimes more outspoken judgements? How do we balance the views of parliamentary government against the preferences of human rights law? These balances are delicate and subtle. They are governed by the Human Rights Act and that Act does not always get them right. It would be useful to reset those balances in some cases, and a Human Rights (Amendment) Act would, if well crafted, be a valuable addition to the UK’s constitutional law.

The Bill of Rights Bill is nothing like as radical as the first position, but neither is it as modest as the second. As drafted, it does more than merely tweak the Human Rights Act. That is why it is going to meet with strenuous opposition in the House of Lords (which is stuffed with lawyers who care about these things, and who will have a field day).

I’m firmly in favour of revisiting and revising the Human Rights Act, of trimming the powers of the courts under that Act, of insisting that Strasbourg’s views should be subject to the rulings of the UK’s courts (and not the other way around), and of strengthening the protection our law affords to freedom of expression. The Bill of Rights Bill does all of these things and more.

It is the “and more” which will land it in trouble. If the Government is smart it will prune the Bill of Rights Bill. A Human Rights (Amendment) Act is hardly going to set the heather alight. It may not be the grand legacy Dominic Raab craves. But it stands a far greater prospect of being enacted than the current Bill does and, I suspect, it is where we will end up.

Adam Tomkins was a Conservative MSP for the Glasgow Region from 2016-2021

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