Thread by @WomaninHavana

Dominic Raab’s long campaign against the Human Rights Act takes shape in a cynical attempt to water down rights protections, including for some of the most vulnerable in our society, under the nationalist guise of reframing arguments about what is ‘quintessentially British’. A 🧵

2. Although i need to read the details of the proposals, there are multiple alarm bells in this piece by a sitting Justice Secretary. It is hard to square any ‘common sense’ justification with the severe & regressive bills on rights before Parliament.

3. Current bills before Parliament:
-impair our right to meaningful protest
- permit citizenship to be summarily removed without notice
- violate the spirit & letter of our international legal obligations to asylum seekers
- introduce a controversial electoral Bill on voter ID.

4. Amongst others. Each of these engages rights under the HRA and Convention.

The Raab article isn’t accompanied by detail or evidence. It appears to rely on an old 2009 case in respect of which the law has changed. There are more recent cases which go against his narrative.

5. He also cites a 70% claim on Article 8, but again the devil is in the detail which is not to be found.

How many of those claims are successful?

Where is the evidence that backs up this new consultation even before the independent Sir Peter Gross report is published?

6. The balancing act between freedom of expression & privacy is not easy. But if this is a genuine attempt to tackle serious modern issues of e.g. online harms, framing them as ‘hyper-sensitivity’ plays with culture wars instead of the hard-thinking judges already engage in.

7. This presumably means Raab is seeking to strike the balance against privacy. If so, we need to know the detail of what he is proposing. What does this mean in practice for the citizen concerned about data, profiling, biometrics, facial recognition, workplace monitoring etc?

8. Next, not sure what trial by jury has to do with the application of the HRA or legislation. It appears to be fastening something that sounds ‘quintessentially’ British onto an attempt to win over critics championing the common law as the right human rights framework all along.

9. Raab’s claim that we don’t need to import a ‘European model of rights’ goes to s2 HRA. It ignores the British framers of ECHR & also ignores that our judges are engaged in healthy, mutually beneficial dialogue & respected analysis with Strasbourg counterparts.

10. Don’t take my word for it. Look at what the UK judge on the European Court, Tim Eicke, as well as former UK Supreme Court President Baroness Hale, told @HumanRightsCtte in March 2021 about judicial dialogue & UK courts’ analysis of jurisprudence.

See committees.parliament.uk/publications/4…

11. As for ending the duty to take Strasbourg case-law into account, the UK Supreme Court is already empowered not to ‘slavishly follow’ ECtHR jurisprudence, which anyway builds in a strong margin of appreciation for States. But the UK.s treaty obligations cannot be cast aside.

12. The UK has a low numbers of ECtHR judgments against it. Any watering down of rights here is likely to result in more judgments against the UK + more cost/time for litigants already facing a justice system at breaking point at home, Raab sounds like he is up for that fight.

13. Arguments for asserting democratic control are heavily tainted by the govt’s approach to repressive & regressive bills & consistent attempts to bypass scrutiny & accountability in Parliament, ramming through barely-considered legislation at speed or through delegated powers.

14. A reminder here of Parliament last month flagging stark constitutional warnings about the shift in power towards govt.

“A critical moment has been reached when Parliament as a matter of urgency should take stock & reconsider how the balance of power must be re-set afresh.”

https://twitter.com/ukhouseoflords/status/1464233228101844996

15. Next, Raab’s claim that govt seeks to “end the practice of the courts to alter legislation”. The courts do not do that. Section 3 HRA does not do that. The Act achieves a clever balance between courts & Parliament. It’s a simplistic assertion which can be misleading.

16. Section 4 HRA enables courts to make a declaration of incompatibility - not commonly done. When it is done, the validity of the provision, or its enforcement, are not affected. It remains for Parliament to change the law. The detail of proposed changes to this balance matter.

17. The language of ‘enacting a democratic shield’ looks more like erecting a shield for a majority govt to continue a platform of draconian legislation, given a nationalist spin to justify removing rights with less accountability, & more obstacles for those who need protection.

18. Those obstacles will be readily apparent in the introduction of a permission stage for cases that are already difficult to bring and run, & the unexplained attempt to reform remedies - damages claims tend to be small & the real remedy lies in the court’s finding of a breach.

19. What purpose does it all serve if we remain a signatory to the Convention? We still have to comply, even if it is more difficult for us to enforce our rights. Perhaps that’s the point. Rights are meaningless unless they can be enforced. And enforced in a timely way.

20. For now, Raab says the govt wants to stay a party to the Convention.

The treaty obligation is for states to comply with the final judgment of the court in any case to which they are parties.

21. As well as a lack of evidence to support these proposals, & the delayed publication of the Gross report, this is a govt that simultaneously wants to call out other states for breaches of international law but either breach it (limited, specific etc) or minimise it for itself.

22. Raab’s proposals are likely to bring the UK before Strasbourg more often. It may lose those cases more often too. That may be itself a driver used to justify leaving the Convention in due course.

It seems Brexit wasn’t enough of a revolution. This won’t be the last word. /

The HRA consultation is now open. gov.uk/government/con…

Here is the consultation document. Will take some time to read and consider.

But would like to understand why the govt is still sitting on Sir Peter Gross Independent Review report on the HRA.

assets.publishing.service.gov.uk/government/upl…