A lot can change in a few months. Having made it into Downing Street at the second attempt, Rishi Sunak has more or less jettisoned the policy prospectus he put to the membership over the summer.
This is perhaps understandable, if the Government were trying to clear the decks so it can focus on landing the Budget and trying to deliver what promises to be a very painful round of tax rises and public spending cuts.
But if that’s the case, it’s difficult to see why the Prime Minister would go to the trouble of reviving a Bill which will not only do more harm than good if enacted, but likely prove extremely difficult to get onto the statute book in the first place.
Yet that he precisely what he is doing by bringing back the clumsily-named Bill of Rights Bill. From the Daily Telegraph:
“Ministers are set to introduce a law designed to secure the supremacy of UK courts over Strasbourg, after a legal challenge under the European Convention on Human Rights grounded the first flight of asylum seekers to Rwanda.
“Downing Street sources said that although the wide-ranging 44-page “Bill of Rights Bill” was not a “silver bullet” to solve the migrant crisis, it would allow UK courts to ignore European case law more often.”
This Bill is the brainchild of Dominic Raab, and it seems vanishingly unlikely that it would be back if anyone other than he had been installed at the Ministry of Justice. It is not viewed kindly by the Tories’ small corps of constitutional specialists; Robert Buckland has outlined the case against it well. This site has also covered the subject more than once.
Whilst there are many criticisms to be made of the Bill – not least that large sections of it are simply inoperative – the most salient is simply that it will not do what it purports to do.
In theory, the Bill is about restoring the supremacy of British law. From the Telegraph again: “Although the Bill does not directly address the issue of illegal migration, it does mean that interim injunctions issued by the Strasbourg Court against the UK Government will not become case law in Britain.”
But the Bill does not “mean that”, because it is already the case that Strasbourg injunctions do not become case law in the UK. The only difference is that this is merely implicit under the Human Rights Act (albeit is accepted by all our domestic courts), whereas the Bill of Rights would… write it down. Nothing material would change.
There is simply no way to prevent the Strasbourg court overturning British judgements without withdrawing from its jurisdiction; indeed, the Bill of Rights might actually end up increasing the number of adverse judgements handed down by the European Court.
Of course, there is nothing to stop Parliament standing by laws found to be in breach of the Convention; but again, it can already do so when the courts issue a declaration of incompatibility under the Human Rights Act. Ministers just rarely (as in, essentially never) have the stomach for that fight.
There are other, better proposals the Government could be taking forward with its limited political capital and parliamentary time. The useful measures from the Bill of Rights Bill could be stripped out and tabled in a much narrower piece of legislation, freeing the MoJ up to focus on alternatives such as Raab’s very promising plan to start targeting individual problematic cases.
If Sunak insists on pushing ahead with the current legislation, on the other hand, he could end up with the worst of all worlds: a symbolic gesture which alienates liberal-minded Conservative voters in the Blue Wall, but which delivers no actual progress to sell to other parts of the Tory electorate.
Last week, I asked what positive programme the Prime Minister actually wanted to achieve. If this is the answer, better I hadn’t.