Joanna Cherry: Covid saved Dominic Raab from a grilling on the Human Rights Act

While I don’t count Dominic Raab among their number, I was particularly frustrated to miss the chance to question him when he finally announced the consultation on his plans to “reform” the Human Rights Act (HRA) in the House of Commons on Tuesday.

With the proposals on the same day as the independent review of the HRA, predictably, as with their plans for judicial review, the Tories intend to go considerably further than the review recommends.

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The foreword makes it that clear the UK will remain a signatory to the European Convention on Human Rights (ECHR). Instead it is to be undermined by stealth, making it much harder for people in the UK to enforce their ECHR rights before the domestic courts. The HRA will be replaced with a modern Bill of Rights which will include the rights that are in the ECHR, plus a few “UK rights”.

The underlying agenda is to find a way to pick and choose which rights can be enforced effectively and to avoid ministers being thwarted by awkward court decisions. It seems certain categories of individuals, ie foreigners, may not be able to access the same rights as UK citizens. There is to be a “permission stage” for human rights claims, whereby the claimant must prove he or she has suffered a “significant disadvantage” before they get their day in court (a higher bar than the European Court of Human Rights demands). And it is to be made more difficult to bring human rights cases against public authorities.

It was a rich irony that on the same day Tory backbenchers railed against the latest Covid-induced encroachment on civil liberties, most of them cheered Raab’s (below) announcement to the rafters. Don’t get me wrong. I rather admire the Tories’ determination to scrutinise the need for the extraordinary curtailment of our rights which the Covid restrictions have involved.

While protecting life and public health must be our foremost consideration in these times of crisis, parliaments should not be supine in the face of such measures and should instead be anxious to ensure they are necessary, proportionate and time-limited.

But if scrutiny is a good thing for Covid regulations then it’s a good thing for government across the board. However, Raab’s new measures are all about freeing the UK Government from the yoke of scrutiny.

The hypocrisy is staggering in more ways than one. When UK Transport Secretary Grant Shapps was wheeled out on the Today programme earlier this week to defend Boris Johnson in the face of an unprecedented rebellion, he asked the rhetorical question – who wants to curb freedoms? The answer, Grant, is your own government. Look at the bills that have been whizzed through the commons this year on Voter ID, borders, policing and public order. Each of these have undermined fundamental freedoms.

Raab’s consultation spends a lot of time harking back to a mythical UK tradition that frankly I don’t recognise. Predictably, Magna Carta (below) gets a lot of mentions. Equally predictably, despite its international influence including on the American Declaration of Independence, the Declaration of Arbroath doesn’t merit a mention. And I think we can safely say that the right to self-determination is unlikely to feature in Raab’s Bill of Rights.

In fairness, there’s a nod to the Claim of Right and the seminal Tumbling Lassie case of 1687 in which the Court of Session declared: “We have no slaves in Scotland, and mothers cannot sell their bairns.” But without a proper analysis of the different traditions that make up the nations of the Union these references are at best tokenistic.

THE right to freedom of speech and the right to trial by jury are described as “quintessentially UK rights”. This is not only wrong, (there is no right to a jury trial per se in Scots law). It is also disingenuous when one thinks of the inroads made on freedom of expression in the Policing Bill.

I must confess to being a little cynical about why Raab waxes quite so lyrical about the right to a jury trial, which doesn’t feature in the ECHR but which he describes it as an “ancient right applied variably around the UK.”

Maybe he is trying to set up a fight with the Scottish Government about plans to restrict jury trials in Scotland. Like many, I have grave reservations about these plans. They will require very careful consideration and consultation with all interested parties, not just those who champion reform. However, ultimately the decision about what to do should be for the Scottish Parliament, not for the justice minister of another jurisdiction.

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While the significance of devolution is noted, there is surprisingly little acknowledgement of Scotland’s separate and distinct legal and constitutional traditions. This is not really surprising as the justification for most of these reforms is the need to bolster the supremacy of parliament, a purely English doctrine. Acknowledging the Scottish notion of the sovereignty of the people wouldn’t fit with the project and could encourage the natives to think that their desire for a further vote on self-determination might be granted.

Raab is trying to invent a UK tradition that simply doesn’t exist. Moreover, if the UK tradition is so integral to the project, one might have expected some mention of the founding document of the UK, the Treaty of Union and, in particular, its protections for the preservation of Scotland’s unique legal system, but it is not mentioned.

Nor is there any acknowledgement of the significance of Scotland’s very different direction of travel under a devolved government which has promised to expand rights protections to incorporate international treaties beyond the ECHR, including economic, social and environmental rights.

It would be unwise to be complacent that there could never be a threat to human rights in contemporary Scotland. At least one piece of legislation recently passed by the Scottish Parliament may, once brought into force, be subject to a human rights challenge for breaching the protections in Article 9 and 10 of the ECHR for freedom of belief and freedom of speech.

The Hate Crime Bill contains no explicit defences to the stirring-up offences for the expression of gender-critical views. For saying that it should I was vilified, sacked from my frontbench position, and threatened with rape. Yet anyone who has considered recent English case law and the case law of the Strasbourg court as well as the trajectory of recent abandoned Scottish prosecutions should see that these protections are required.

Indeed, just last week the English Law Commission said that “[A] blanket restriction on the expression of gender-critical views would likely be in breach of Articles 9 and 10, because it would be an unnecessary and disproportionate interference with the rights to hold and express those protected beliefs.

Moreover, where – as with discussions on reform of the Gender Recognition Act 2004 – the expression was a contribution on a matter of political debate – the scope for interference with the right would be limited.”

That is a correct reflection of the ECHR law. Sadly, Scotland’s Hate Crime legislation is not.

So how will Raab’s plans play out? Well, there will be a consultation period which will include consultation with the Scottish Government but, ultimately, we know that no matter what the consequences for Scotland, the UK Government with its big majority will do what it wants.

As with the bigger picture the only way to stop this project is with independence. With every new Tory initiative it becomes increasingly clear that we cannot peril our strategy to secure that independence on the permission of a Government that holds such scant regard for the separate legal and constitutional traditions of our nation.