Raab's rights bill: there may be trouble ahead

Dominic Raab’s Bill of Rights Bill will have its second reading debate ‘shortly’, the justice secretary promised MPs on 22 November. He was ‘very close’ to agreeing a timetable with the Commons business managers but the challenge he faced was the ‘funnel of important stuff that the government’s reforming agenda is pushing through’.

Isn’t Raab’s bill regarded as an important reform? That question was not pursued by the Commons justice committee. Instead, MPs wanted to know whether there were any provisions he intended to amend before the bill returned to the Commons.

As Raab correctly pointed out, it has never gone away. He had rushed his bill out on 22 June, clearly expecting a second reading debate well before the summer recess.

But that was not to be. The government was beset by ministerial resignations and, two weeks later, Boris Johnson was forced to announce his own impending departure. It was not until the end of July that Raab managed to get his bill scheduled for its main Commons debate on 12 September.

By then, Johnson and Raab were out of office. Just about the first thing their successors did was to drop Raab’s bill. Then they themselves were dropped.

Raab was back in office at the end of October – though not before the Bill of Rights Bill had been eviscerated by just about every senior legal figure you could think of. But, short of abandoning it and starting again, the justice secretary cannot yet address their concerns. Once a bill has been published, parliamentary rules say that the MP in charge of it is not allowed to make alterations to its text before its second reading.

Nobody else sees the need for such a wide-ranging reform and all this assumes that Raab keeps his job

Would the justice secretary make any changes as the bill proceeds through parliament? ‘You know that I will always engage constructively,’ Raab told the committee chairman, Sir Bob Neill, with an ironic grin. ‘I suspect there will be some interesting conversations in the House of Lords.’

There will indeed. And the most interesting will be over whether the bill fulfils a manifesto commitment. Clause 1 of Raab’s bill says it ‘reforms the law relating to human rights by repealing and replacing the Human Rights Act 1998’. In 2019, the Conservatives promised merely to ‘update the Human Rights Act’.

Hadn’t Raab gone well beyond the manifesto? ‘I don’t think so,’ he replied.

Why might that matter? Generally speaking, bills that seek to implement manifesto commitments are not blocked by the Lords. As a result of this understanding, known as the Salisbury convention, peers do not subject manifesto bills to wrecking amendments and should return them to the Commons in reasonable time.

In practice, the upper chamber does not usually block any government bill. One reason for deferring to MPs is that ministers can normally force a bill through by using the Parliament Acts 1911 and 1949. These provide that if a bill has been passed by the Commons but rejected by the Lords in two successive sessions, it will become law one year after the first occasion on which it received its second reading in the Commons.

But that won’t work if, as now seems likely, Raab’s bill has to be carried over to the next session of parliament. His plans have already been delayed by six months or more. As a constitutional reform, the bill’s committee stage is likely to be taken in the main Commons chamber rather than in a committee room upstairs. That will take up precious parliamentary time, especially if Raab tries to add new clauses. Debate will be restricted by a timetable motion, of course, but that would give the House of Lords even more justification for taking their time over the bill.

Nobody else sees the need for such a wide-ranging reform and all this assumes that Raab keeps his job. Last week, Adam Tolley KC of Fountain Court Chambers was appointed by the prime minister to investigate three formal complaints about Raab’s conduct. That may take some time, especially if more complaints are added to Tolley’s terms of reference. If Raab goes, his bill will surely follow.

Select committees try to rise above party politics. But Raab’s bluster was no match for the chair’s well-informed probing. Neill suggested to the minister that, if his bill was passed, the UK would lose more cases at the human rights court than it does now and people would find it harder to enforce their rights directly.

‘I don’t believe that’s what will happen,’ said Raab.

But that was effectively what his department’s own impact assessment had said, Neill explained. Raab seemed briefly blindsided before saying it showed how ‘dispassionate’ the government had been.

The justice secretary is confident his bill will have ‘overwhelming support’ from MPs at its second reading. But that, as he knows, is only the beginning.

joshua@rozenberg.net