Joint Committee on Human Rights

Oral evidence: Legislative scrutiny: Bill of Rights Bill, HC 611


Wednesday 14 December 2022


Watch the meeting


Members present: Joanna Cherry (Chair); Lord Dubs; Lord Henley; Baroness Ludford; Bell Ribeiro-Addy; David Simmonds; Lord Singh of Wimbledon.

Questions 16 - 41



I: Dominic Raab MP, Deputy Prime Minister and Lord Chancellor and Secretary of State for Justice, Ministry of Justice.

Oral evidence: Legislative Scrutiny: Bill of Rights Bill



Examination of witness

Dominic Raab.

Q16            Chair: Good afternoon and welcome to today's meeting of the Joint Committee on Human Rights. We are a cross-party Joint Committee, which means we have Members from both the House of Commons and the House of Lords.

Our focus today is the Bill of Rights Bill, which was introduced in the House of Commons on 22 June. The date for the Second Reading of the Bill has not been set as yet. We are happy to have with us this afternoon the right honourable Dominic Raab, Deputy Prime Minister and Lord Chancellor. Good afternoon, Lord Chancellor, we are very pleased to have you here. We had hoped to see you five months ago. Nevertheless, we welcome you today and thank you for coming. Before I ask you any questions about the Bill of Rights, it has been reported in the Guardian today that you blocked the reappointment of the Victims’ Commissioner, Dame Vera Baird. Is that report accurate?

Dominic Raab: I am responsible for the appointment and, as you know, we have been engaged in an open competition. I refreshed the open competition because I wanted to get the fullest and strongest field within which to choose. That is the right thing for such an important role. There is always a balance between doing it swiftly and doing it as comprehensively as possible, but my view, particularly with the Victims Bill and the changes that were being made, is that it was worth a wider trawl to attract the very best and widest talent group for such an important appointment.

Chair: My understanding is that she stepped down in September after being told in July that she would not be reappointed. Is that correct?

Dominic Raab: I would have to come back to you on the specific dates, but we made clear that we would go out to open competition. As I say, I am conscious of the need to fill the post, but it is right to make sure that we do it with the very best field of candidates we can have. I am confident that we will.

Chair: Is it accurate that she wanted to be reappointed but was told she would not be?

Dominic Raab: No. You would need to speak to Vera about what she wants to do.

Chair: Can we ask you to clarify for us in writing whether she wanted to be reappointed and whether she stepped down in September after being told in July she would not be reappointed?

Dominic Raab: You need to go to her about her intention, but I can tell you that I certainly did not tell her that.

Chair: The post is vacant at the moment. When do you expect to fill it?

Dominic Raab: Again, I would need to look at the dates, but we are in the middle of the process. I accept that it is an important role. I want to fill it as soon as possible.

Chair: It has been empty since September.

Dominic Raab: Yes.

Q17            Chair: In her resignation letter, Dame Vera Baird said that the criminal justice system was in chaos, and she accused the Government of downgrading victims' interests. What is your response to that?

Dominic Raab: That is demonstrably wrong. It may reflect the fact that she had hoped that she would be reappointed by then, but I cannot speak to that. What I can tell you is that with the Victims Bill we have made very important strides. We have quadrupled the funding for victims since 2010. In relation to violence against women and girls in particular, there will be a whole range of support with the national rollout next year—at the end of the first quarter, I think—of Operation Soteria. We have the 24/7 rape support line. The Section 28 pre-recorded video evidence measure has now been rolled out nationally. We have made very important strides, but there is still more to do.

Chair: Do you agree that it is unfortunate that while all this critical legislation is passing through Parliament there is no independent victims rights commissioner in place to scrutinise it from the victims’ point of view?

Dominic Raab: That is true, but we have lots of others who provide comments. I am not going to downgrade or diminish the importance of the Victims Commissioner. Far from it. It is precisely because of the importance of getting that appointment right that we are going through such a rigorous process. I hope that person will be in place shortly. They will of course have the opportunity to provide us with that important feedback, as Dame Vera Baird did until recently, on the victims’ clauses of the Bill that have gone through pre-legislative scrutiny.

Chair: You said that you hoped to fill the post shortly. The Guardian reports that the post is expected to remain vacant until spring next year.

Dominic Raab: I would have to come back on that, but that has not come from me.

Chair: Do you agree that it would be regrettable if the post remained empty for several months?

Dominic Raab: I want to get it filled as soon as possible, but the most important thing is to get the very best candidate.

David Simmonds: I certainly was not aware that these questions were going to be raised. Important as they are, for the record I would like to say that these questions are not being asked on the basis of evidence we have taken as a committee. Clearly reports in the Guardian are reports in the Guardian. I am sure the committee could consider the matter, take any evidence and perhaps raise some further questions in due course.

Q18            Chair: As you know, the committee would hope to do that. We cannot take evidence from the Victims Commissioner if there is not one in place, but your point is duly noted, David, thank you.

Moving now to the Bill of Rights Bill, Lord Chancellor, it is nearly six months since you published the Bill of Rights on 22 June, and it is three months since the Second Reading was pulled just before 12 September. We now have the House of Commons business up to the Christmas Recess and there is no sign of a Second Reading of the Bill. Can you tell us when the Bill will receive Second Reading?

Dominic Raab: We are ready to go. The Bill has been published, which of course gives us all the more time for valuable scrutiny and consultation. The change of government has had an impact. It is a collective effort and the Prime Minister today addressed his sequencing of priorities, which I fully support, but we are ready to go. The Bill of Rights is ready to go and we look forward to bringing it to Second Reading and engaging with your committee and with Members of both Houses.

Chair: You cannot give us a date.

Dominic Raab: No. I have not been given one yet, but, as I said, we are ready to go with it

Chair: When it does come to the Commons, is the plan to take it to a committee of the whole House?

Dominic Raab: Yes.

Chair: Looking at the history, which you and I have both alluded to, the Bill was published on 22 June. You were due to give evidence to us on 20 July, but you pulled out. We expected a Second Reading of the Bill on 12 September, and that was pulled by the Government headed by Prime Minister Liz Truss. On 14 September, you were due to give us evidence and you cancelled again. On 17 October, Brandon Lewis MP, the Lord Chancellor appointed by the right honourable Liz Truss, told us that the Bill had been paused and they were looking at it again. I was present at a Westminster Hall debate on 24 October when the junior Minister told us that the plans were now just to review and update the Act. He reminded us that the Conservative manifesto did not say that you were going to repeal and scrap the Human Rights Act.

The day after that, on 25 October, you returned to office as Lord Chancellor and announced on Twitter that the Bill would have its Second Reading in the next couple of weeks, and you confirmed that to this committee by a letter dated 14 November. On 22 November, you told the Commons that the Bill was going to have its Second Reading very shortly, and that you were close to agreeing a timetable with Commons business managers. On 8 December, the Daily Mail reported that No. 10 had—I am using their languageKicked the Bill into the long grass. The Times said that the Bill had been deprioritised, but you were trying to convince the Prime Minister that the Bill was crucial and that several other proposed laws hinge upon it.

I am going through that timetable, because it is a bit tortuous. It is fair to say that there has been a bit of a Hokey Cokey with the Bill since it was first published in June last year. It does seem that three different Prime Ministers and many of your colleagues are not very keen on the Bill and that it is very much your personal baby. Is the lack of enthusiasm from your colleagues a bit embarrassing for you?

Dominic Raab: No, not at all. You can cite newspaper reports and this and that, but the reality is that both former Prime Minister Johnson and Prime Minister Sunak are committed to the Bill of Rights, and I am delighted that we will be taking it forward.

Chair: Are the reports in the Times accurate that you were arguing that the Bill was crucial and that several other proposed laws hinged upon it?

Dominic Raab: Look, I am not going to comment on tittle tattle in newspapers. I am here to answer your questions to me on any of the details in the Bill.

Chair: Let me put my question to you then. Would it be correct to say that there are other proposed laws that hinge upon the repeal and replacement of the Human Rights Act?

Dominic Raab: We have always said that if we want to deport more foreign national offenders or strengthen free speech in the way we have described, those are all things that a Bill of Rights will help us to deliver. I have been clear in the past that I think we will have a better chance of delivering some of the more concerted parole reforms if we have the Bill of Rights. Terrorist offenders in separation centres in prisons are increasingly claiming a right to socialise under Article 8, for example. Frankly, issues like that just show you the material benefits of delivering the Bill of Rights. I do think it is important for a whole range of the Government’s policy aims, particularly with regard to public protection but also to some of the other areas I have touched on.

Chair: Yesterday, the Prime Minister announced in Parliament that he will be bringing forward a package of immigration legislation in the new year. Do you think the success of that legislation would hinge upon repealing the Human Rights Act and replacing it with the Bill of Rights?

Dominic Raab: I think they have a crossover, but we will want to make sure that the legislation on small boats that comes through is self-standing. The Bill of Rights will assist, but I do not think it will resolve the small boats crisis on its own. I have always been very clear on that. I want to be clear that it will assist in three particular ways: in the approach to interim orders; in the kerbing of the more creative judicial innovations; and, in particular, in the repeal of Section 3 of the Human Rights Act, with the ability to effectively amend legislation through the courts being licensed effectively to do so

Chair: You are talking about the interpretive obligation.

Dominic Raab: Yes, but effectively to read down legislation without Parliament having any scrutiny. There are also the provisions in the Bill of Rights in Clause 7. Those three will materially help to protect greater border controls, within the margin of appreciation and the bounds of what is permissible under the ECHR. That would, at various points, help with small boats. I certainly support the Home Secretary and the Prime Minister in bringing through the small boats legislation in the new year.

From a human rights point of view, the appalling tragedy that we have seen today just shows you how this will be a human rights-enhancing measure and why we need to look at what is going on in the channel and with small boats as a human rights, I would say not only the disaster like the one we have seen now, but the recipe for far more humanitarian loss-of-life, and the measures that we are taking will help to protect human rights for precisely that reason.

Chair: What measures will be human rights-enhancing?

Dominic Raab: Measures that stop this awful trade and people taking these appalling risks, which can lead to tragedies like the ones we have seen today.

Chair: You are talking there about the organised crime and smugglers.

Dominic Raab: I am talking about it in the round. We need to deter it at every level, consistent, of course, with our international obligations. We take very seriously. The draw, the attraction, of coming here illegally and taking the kinds of risks that we have seen, and the criminal gangs with their business model who prey on them. I would have thought that was clear, graphically and tragically so, from what we have seen today.

Chair: Do you think the Prime Ministers proposals and your Bill of Rights will enhance the human rights of asylum seekers?

Dominic Raab: Yes. Overall, I think they will have exactly that effect by discouraging perilous, illegal routes and with the emphasis the Prime Minister has put on the importance of international safe routes.

As Foreign Secretary at the time, alongside the then Home Secretary Priti Patel and the then Chancellor, the current Prime Minister, and the current Immigration Minister as the Secretary of State for MHCLG, as it then was, I was very proud to pioneer the Hong Kong BNO package that has been taken up. That was a really important thing to do. Likewise, on Ukraine and Afghanistan, we have shown that we have a compassionate history and heart as a nationand I say this as a son of a refugeewelcoming those who flee persecution, but that is put at risk, both with regard to public confidence and in practical operational terms, when you have these chaotic illegal routes. Stopping those in the way I have described is much safer and, if you look at in aggregate, will enhance human rights in this country and internationally.

Chair: I do not want to stray too far into what is the province of the Home Affairs Committee, but I need to challenge you on a couple of things there. We know that there are no Ukrainians or people from Hong Kong on the boats crossing the channel because there is a safe, legal route for them, but we know that for people from other countries, asylum seekers, there is no safe, legal route for them to come to the United Kingdom. There is talk of more safe, legal routes, but we have not been given any detail.

Would you answer the question that the Home Secretary was unable to answer: if somebody wants to come to this country to claim asylum and there are not the kinds of resettlement schemes that we have seen for Ukraine available to them, what is their legal route to get here at the moment?

Dominic Raab: It is not just Ukraine. There are the BNOs, as I mentioned, and Operation Pitting.

Chair: Let us talk about the country for which there is no scheme in place.

Dominic Raab: Sure, but I think it is right that we focus our compassion on the most acute disasters. It is a fair question, and the Prime Minister, when he set out the proposals yesterday, talked about this. We will work with the UNHCR to identify those most in needI do think that is an important thing to do—so we offer that safe haven to those who are most vulnerable. Our legislation will introduce a cap on the overall number, set by Parliament in consultation with local authorities, and that is the way we will do it. That is also a better way of encouraging integration for those who come here.

I went to Cobham Free School in my constituency recently and was struck when three BNO children and their motherI think the mother may work thereapproached me to thank the UK for our generosity.

Chair: I am asking you about people for which there is no established scheme. I am not querying the fact that it is good to have established schemes. I am asking you quite a precise question, Lord Chancellor. What is the legal way at present for people from countries for which there is no established scheme to come to and claim asylum in the United Kingdom?

Dominic Raab: I just said that that is what the legislation will address.

Chair: There is no way at present. If you need legislation to address it, there must not be a way at present. Is that right?

Dominic Raab: No, the Prime Minister was clear. It has been done ad hoc, if you like, in recent years, and part of the package of measures, as well as clamping down on the illegal routes, is to clarify the more generic way this will be done rather than just country by country. There will be legislation with a cap, but it will be done in consultation with the UNHCR so that we can focus on areas where they think there is the greatest need and where the burden sharing is most appropriate. We can also do it in a controlled way with local authorities because of the integration piece that I touched on.

Chair: You are talking about the future.

Dominic Raab: Yes.

Chair: At present, you are unable to point to a safe, legal route for someone wanting to come to the United Kingdom to claim asylum if they are not from one of the countries for which there is a designated scheme.

Dominic Raab: I think it is legally possible, but I ought to defer to the Home Secretary.

Chair: How is it legally possible?

Dominic Raab: You can claim asylum in different ways, but the truth is that I should not—

Chair: You have to be in this country to claim asylum. Is that not the law at present? How do you get here if you are not from a country with a scheme?

Dominic Raab: What I wanted to do is set out the proposals for the future, but it is not for me to discuss the current asylum arrangements; that is for the Home Secretary. I am sure she would be willing to write to you if you need further detail.

Q19            David Simmonds: Obviously, I entirely agree and support everything you have said so far about the future and the way the scheme works in respect of existing safe and legal routes or resettlement.

As a committee, we took evidence on the Nationality and Borders Act, and one of our frustrations and something we spent some time on was this question of the relationship between safe and legal routes and the ability of the UK Government to consider a claim to be either disadvantaged or inadmissible because of the means by which someone came to be in the UK. We know, as the Chair has outlined, that you cannot lodge your application for asylum in Britain unless you are already physically here.

It is a commendable ambition that the UK Government want to break the cross-channel smuggling route by saying, “If you come by a route that’s irregular, that would disadvantage you in lodging your claim”, but at present that will always fail because there is no alternative route by which those people could have launched their claim. Even the European Convention on Human Rights may not be the key issue here. The point is that a British court would take the view outside of that: that if the system had frustrated any possible means by which someone could lodge a claim, that factor had to be set aside.

The question then becomes: what will be the safe and legal route by which someone who is currently in northern France with a family member in the UK can lodge a claim, or even seek permission to travel to the UKwhether at an asylum centre, at the UK border in Calais or at a consulate anywhere else in the worldin order that there will be an alternative to getting in a small boat, which in turn would enable the UK Government to say, “If you come in a small boat, that will not be your advantage. If you take the safe and legal route, it will be?

Dominic Raab: Yes, but again, I am not going to comment on what judges may or may not decide and I am not going to do the Home Secretary’s role. All I would say in relation to those who have come from France is that, by definition, they have come through a safe third country, either directly or indirectly, and that is one of the problems here. That is not supposed to happen. If you look at the crisis situations that we have addressedI think of Afghanistan, and we mentioned Ukraine and Hong Kongwe have found a way to do it, from the source country or from countries in the region. I accept that there is a problem with the situation in Calais and France. That is what the Prime Minister, the Home Secretary and the whole Government are seeking to address. I get the conundrum that you are posing. It is just probably for the Home Secretary to answer your questions in more detail.

Chair: I just want to query something quickly and then we will move back to the Bill of Rights. You said that some people in northern France have come through a safe third country and that is not supposed to happen.

Dominic Raab: Yes.

Chair: But there is nothing in the international refugee convention that says that people have to claim asylum in the first country they come to, is there?

Dominic Raab: No, but our experience has been part of the Dublin convention. I know that that does not—

Chair: We are not part of the Dublin convention, because we left the European Union.

Dominic Raab: Of course, but it was happening even before then. There is an expectation now, Whether it is custom international law is, I think, debatable, but certainly there is a moral argument—I would need to check whether it is a legal argumentthat you claim your asylum in the first jurisdiction.

Chair: I assure you that it is not the legal position, because I checked it yesterday before I asked the Prime Minister about it. As to the moral argument, is there not equally a moral argument that if people are migrating across the world, whether it is because of famine, climate crisis or political oppression, it is not fair to expect countries in the immediate vicinity of the problems to take all the asylum seekers? Surely there is a moral obligation for global Britain to play its part.

Dominic Raab: Of course, that is right, but whether it is Ukraine or Hong Kong, whenever we make the assessments, it is not a question of what we want. The vast majority of people travelling those distances, if they have to flee their home country, if they have to leave their homes, would prefer to be in a country of the region. That is clear from the migratory flows. That is the first thing.

In terms of the moral duty, I have talked about my family history before, and I think we want to be a compassionate country. Few countries have shown so much compassion proactively on Hong Kong, and very swiftly on Ukraine and Afghanistan, but it has to be done via a structured and orderly route. What I do not accept as a premise, Joanna, is that chaotic flows across such long distances, with the UK a natural magnet for all sorts of reasons, is the right way to do it. You will lose public confidence. I saw it when I lived in the Netherlands for three years as a diplomat on posting at the time of the murder of Pim Fortuyn and the big raising of tensions, particularly with some of the ethnic minority communities there. If it is felt by the public that there is no structured, controlled way, if you do not have integrationthis is why we talk about local authoritiesthe centre parties start to get attacked by the fringe parties. Whatever our views, and we may differ on many things around this table, we all want to avoid fringe parties, some of which we have seen gain increasing traction in Europe.

Chair: I hear you, Lord Chancellor.

Dominic Raab: If you want to maintain public confidence, you have to show that we can do this in a managed, organised and less chaotic way.

Chair: We can debate these issues all day, but we really need to get back to human rights, which is what this committee is concerned with. I want to get back to asking you about the Bill of Rights. In fairness to you, you have been working on this Bill of Rights for many years. It stems from a book you wrote over a decade ago, and I think it would be fair to say the Bill of Rights is very much your baby, is it not?

Dominic Raab: No. I have thought about it a lot but, if you want to be precise about it, it was in the 2010 manifesto. It was also in the 2015 manifesto; we talked about it, albeit in a slightly different version of the language, in the last manifesto. I would challenge the assertion that the Human Rights Act got everything right. It is a very British thing, not even just a Conservative thing, that human rights are a journey that we are on, from Magna Carta right the way through. It is not a transaction where it is just done and we look to write the next chapter true to our traditions and the modern circumstances as we go. I have made a contribution to that, as many others have. As I say, it has been in various manifestos for the Conservative Party. I could not claim sole authorship, as much as you might try to flatter me to that extent.

Chair: That is very modest of you. Perhaps I can put it this way, and I am really not trying to be cheeky or rude here, Lord Chancellor. You know that I very strongly believe in due process.

Dominic Raab: Yes.

Q20            Chair: I very strongly believe that if accusations are made against a person in any capacity, they should be innocent until proven guilty, but I need to ask you this because there is an investigation into a number of allegations against you at present. As I stress, those are allegations, and I am a great believer in due process and respecting the fact that one should wait until the outcome of an investigation before making a judgment, but I need to put this question to you. If, for any reason, you had to demit office, who do you think would take this Bill forward?

Dominic Raab: I am afraid that is a bunch of hypothetical questions that I am not going to indulge you on. I have been clear on the claims made about me, and I believe I have behaved professionally throughout, but of course I welcome, and indeed I called for, an independent investigation so that I could deal with them transparently, not through the tittle tattle that is anonymously leaked to the media. I am very confident that the Bill of Rights is a government proposal, not my proposal, and we have collective responsibility on these things.

Chair: You said a moment ago that you did not think the Human Rights Act was perfect. I want to put a quote to you from Lord Carnwath, the former Supreme Court Justice who gave a lecture about your Bill of Rights proposals back in February of this year. He said this of the Human Rights Act: “It was a simple and elegant way of consolidating those rights within our own law, while respecting the key principle of Parliamentary Sovereignty”. Would you agree or disagree with that statement?

Dominic Raab: No, I would not characterise it in that way, but I respect the fact that he might. A whole range of other people were involved right at the outset: Jack Straw, David Blunkettvery much Labour architects who disagree. I do not think it is a partisan thing.

Chair: This is Lord Carnwath I am talking about.

Dominic Raab: Yes.

Chair: Former Supreme Court Justice, not a Labour architect.

Dominic Raab: I agree.

Chair: I think he was thinking about it more as a constitutional lawyer, and he said that it was a simple and elegant way of consolidating those rights within our own law while respecting the key principle of parliamentary sovereignty, so it is not really a political proposition; it is more of a lawyer’s proposition.

Dominic Raab: No, but there have been quite a few who have criticised both the Strasbourg and the wider UK application of human rights, including various QCs and previous law lords. Whether or not they agree with the Bill of Rights, I do not want to put words in their mouths, but the critique of the Human Rights Act, and indeed the way we apply Strasbourg case law, goes far beyond the political domain.

Chair: The terms of reference for the independent review of the Human Rights Act did not include replacing the Act or include the scope of the convention rights, so it is fair to say that we do not have the benefit of the independent reviews expert views on those matters, do we?

Dominic Raab: Actually, Sir Peter Gross's report and his panel's contribution, which is very valuable, covered quite a lot of the ground. I look very carefully at it. In some areasfor example, where they were proposing various different amendments at the European levelthey probably went further than anything we have suggested in the Bill of Rights. The reality is that I have taken the view, and the Government have taken the view, that we need further reform on some of the issues that they considered but did not recommend a particular outcome on. Section 2 is a good example. The case for amending Section 2 and Section 3 is irresistible, but I respect the fact that people take different view on this.

Chair: I was asking you something rather more specific, Lord Chancellor. I said that the independent review was never asked to consider replacing the Human Rights Act or to consider the scope of the convention rights, so we do not have the benefit of their expert view on that, do we?

Dominic Raab: Actually, if you look at itI do not have it to hand, but I am sure I could dig it upthey looked at quite a lot of

Chair: I am talking about their terms of reference.

Dominic Raab: Yes, but they looked at all these things anyway. They looked at extraterritorial jurisdiction, for example. That is not a procedural thing.

Chair: They did not look at the scope of the convention rights, Lord Chancellor.

Dominic Raab: I do not think that is quite right. Extraterritorial jurisdiction is, I think, the substantive scope, because it is the territorial scope.

Chair: I am talking about the convention rates from Article 1 on the right to life through to the right to family life. They did not look at the scope of those rights because they were not asked to.

Dominic Raab: Actually, if you look at the proposals for the Bill of Rights, not only are we staying state party to the European convention, but we incorporate a schedule of rights. It is true that we look at the way the UK interprets those rights in the procedural framework, but those are fundamentally about rights that are derogable or rights that admit of qualificationfor example, Article 8. We do not touch Articles 2 and 3 substantively.

Chair: I am not asking you about your consultation. I am asking you about the independent review. Do you agree with me, and it is a matter of record, that their terms of reference did not include replacing the Human Rights Act and did not include the scope of the convention rights. Therefore, although we have the benefit of their expert views on many other matters, we do not have the benefit of their expert views on those issues because they were not asked to consider them?

Dominic Raab: No, because what they did was reach further and in fact delve into substantive issues. I have given you an example of that, but we may have degree to differ on this, Madam Chair.

Chair: They concluded that no significant changes needed to be made to the Human Rights Act. That is correct, is it not?

Dominic Raab: They had a range of recommendations.

Chair: Three small changes.

Dominic Raab: Okay, so they did recommend changes.

Chair: They concluded that no significant changes were needed to the Human Rights Act. That is right, is it not?

Dominic Raab: Madam Chair, I do not think it is news to say that we need to go further than Sir Peter's report, much as I hugely valued the insights and recommendations he made, but that is—

Chair: You never actually responded to Sir Peter's report, did you? On the same day it was published, you brought out your own consultation, and I think Lord Carnwath described the two things as ships that passed in the night.

Dominic Raab: No, I consulted with Sir Peter and I had the benefit of his report. I looked at it very carefully and I discussed it with him.

Chair: You did not publish a response to his report, did you?

Dominic Raab: No, but we have woven our views on his report into the response on all the other things we have been doing, including the Bill of Rights consultation.

Chair: Your predecessor, Sir Robert Buckland, has described the Bill of Rights as a cure without a problem. What do you think of that?

Dominic Raab: I hugely respect Rob, and he is entitled to his opinion, but I disagree with him in the way I have described. Let me give you a few examples.

The way we have had the combination of judge-made privacy law impinge on media freedoms and the pressure on free speech generally—that is something that you have spoken about very passionately, Madam Chair—is a good illustration of where we have allowed the parameters of free speech to be narrowed, possibly more in practice than in law. The volume of Article 8 cases used to frustrate the deportation of foreign national offenders is also an issue. Parole has become adrift from its moorings and, as I have said, we would need the Bill of Rights effectively to deliver the reforms we have talked about, at least in totality. I also think we need to address the issue of separation centres in our prisons dealing with a terrorist threat. The Human Rights Act is being used as one of the legal weapons to challenge the use of separation centres.

What I have tried to do is give you concrete examples of things I believe need to be addressed and which the Human Rights Act is licensing litigation to prevent us from doing.

Chair: The independent review of the Human Rights Act concluded that no significant changes were required. Sir Robert says that the Bill of Rights is a cure without a problem”. Your own public consultation showed that not one of your proposals had wide support. That is right, is it not?

Dominic Raab: It depends who you are talking to. Of course, when you do a consultation like that, mostly you hear back from the sector, NGOs, those who support the very elastic interpretation of human rights, which, as I said, I think is constitutionally wrong as well as creates the practical problems that we have made, but that is natura; that normally happens with consultations in those sectors. If you look at the broader public response, when people hear what we want to try to do, the strength of free speech brings some common sense into the system in areas where we think it is being abused—I have given the example of deporting foreign national offendersI think it has widespread public support.

Chair: Let us look at someone who is broadly on your side in taking the view that there has perhaps been, to use your words, an elastic interpretation of human rights. Lord Sumption has told us that the Bill is singularly badly drafted. Do you have any plans to make amendments to fix the Bill as it makes its way through Parliament?

Dominic Raab: By the way, Lord Sumption is one of the most searing critics of the way Strasbourg in particular has operated in recent years. In fairness, both the Supreme Court and the Strasbourg court have shifted over time.

Chair: I am not asking you about that. I agree with you, and we both know, that Lord Sumption is a searing critic of the Human Rights Act, but my point to you, notwithstanding his concerns about the existing Act, is that he has said that your Bill is singularly badly drafted. What I am asking you, and I am keen to get an answer on, is whether you have any plans to make amendments to fix the Bill as it makes its way through Parliament.

Dominic Raab: We will go through Parliament in the normal way, and if there are better ways of achieving our aims, then of course. I am not quite sure where we are at this point in time, but whether it is in the Commons or in the other place, I am very happy to look at those. Indeed, I have extended that invitation to Lord Sumption.

Q21            Chair: Can I just ask you about the convention itself before we move on to more detailed questions about the Bill? As you have pointed out, there have been various promises and Conservative manifestos over the years to reform the Human Rights Act, but back in 2015, when the right honourable Theresa May was Home Secretary prior to the Brexit referendum, she said that, rather than leaving the European Union, the UK should leave the European Convention on Human Rights and the jurisdiction of its court.

More recently, we have it reported that the current Home Secretary, the right honourable Suella Braverman KC, said at an event at the Conservative Party conference that her position was that ultimately the United Kingdom needs to leave the European Convention on Human Rights. I asked her in the Chamber today if that was still her position and she declined to answer. But yesterday in the Chamber, when the Prime Minister was introducing his Statement about a new immigration law, a lot of your Conservative colleagues on the Back Benches were calling for the Government to derogate from the convention.

Again, today, we had a question at PMQs about derogation, and the issue was raised during the Home Secretary's Statement about the tragedy in the channel. I asked the Prime Minister yesterday if he would rule out derogation and he did not. What is your position on whether or not the United Kingdom should stay in the convention?

Dominic Raab: First of all, you are conflating various different things. Derogation is of course permitted within the

Chair: I am coming to derogation in a minute. I am asking you about your position on staying in the convention.

Dominic Raab: Let us not conflate derogation—

Chair: Hang on a second, Lord Chancellor, I was explaining to you what has been said over the last couple of days and narrating to you comments that have been made in the Chamber—

Dominic Raab: Not just the last couple of days; you went back to 2015.

Chair: I went back to what Theresa May said in 2015 and reminded you of what the Home Secretary said, but then I asked you a question that was very specific: what is your position on staying in the convention?

Dominic Raab: The Government's position is very clear: we rule nothing out. Nothing is off the table for the future, and I have made the point that the Bill of Rights envisages us staying within the convention and, indeed, that the ECHR is included as a schedule. The main effect is to overhaul the procedural framework for interpretation, although it does have measures dealing with dialogue and the margin of appreciation, but that is the Government’s position. I think it is entirely consistent with what both the Prime Minister and the Home Secretary have said.

Chair: That is very helpful. Your position is that nothing is off the table for the future.

Dominic Raab: I do not think any Government can take things off the table.

Chair: You are not ruling out withdrawing from the convention in the future.

Dominic Raab: In the future, depending on the situation we find ourselves in, given the ebb and flow of the approach Strasbourg has taken, I do not think it is responsible for the Government to rule things out. What it is the responsibility of the Government to do is to make sure that we deal with the big issues of the day. One of the big issues which our constituents feel very, very frustrated about is the situation with small boats.

Chair: We have talked about small boats a lot, and I am conscious of the time. You wrote to us on 14 July in response to my letter of 13 June as acting Chair of the committee that, “Our plan as a Government is to remain party to the European Convention on Human Rights. Have you changed your position since then?

Dominic Raab: No, and if you allow me to complete what I was saying, the Bill of Rights envisages that we stay in the European convention; indeed, that we incorporate the convention as part of a schedule to the Bill of Rights. But if you are asking us to tie ourselves down indefinitely for the future, that is not something we are willing to do. I think I am known as saying for many years that I think we can achieve most, if not all, of what we want to do by asserting the marginal appreciation and changing the procedural framework, but I cannot guarantee it.

Chair: Okay. That is very interesting, because when this committee went on a delegation to Strasbourg earlier this year, we met with many interlocutors who told us about how important they felt it was that the United Kingdom should remain in the convention because of the signal leaving would send out to other states, particularly eastern European states. But we were told that UK Ministers visiting Strasbourg have repeatedly assured various interlocutors at the Council of Europe there is no question of the UK withdrawing.

Dominic Raab: Madam Chair, you have a new Government, a new Prime Minister, and we have the acute crisis in the channel. I am looking forward to going over to Strasbourg in the new year. I have always had a very good relationship with them. We want to stay within the convention. No one is looking to trip up out of it, but I think we have to put the national interest first. That is the responsibility of any Government.

Q22            David Simmonds: Thank you. I think we have all heard loud and clear that the Government remain, certainly for the foreseeable future, committed to the ECHR. We also heard quite a few articulations about the idea of the need for a new global agreement on migration. Clearly, in the drafting of the Bill of Rights, one of the things that might be under consideration is compatibility with future ambitions and what that might look like. I am just interested in whether there has been any discussion in international fora about what a successor agreement or set of treaties might look like. Is that something the Government are thinking about?

Dominic Raab: We of course engage with all our international partners. A lot of that is done by the Foreign Secretary, although all Ministers have a role in it. I remember us having this conversation with respect to the Brighton declaration. It was Ken Clark and Dominic Grieve who pursued that at the time, and they are not known for being human rights hawks. There is absolutely no reason why we could not revive those kinds of initiatives, whether at a global level or a European level.

I cannot say whether a protocol or anything like that is immediately on the horizon, but it is certainly true that there is a lot of concern about some of these migratory issues and the feeling that the architecture that was set up in the post-war era is not reflective of the circumstances that we are seeing today. I think that must be true. Quite how we address that and whether we have a convention or deal with it in other ways is an interesting question.

Q23            Lord Singh of Wimbledon: Good afternoon, Lord Chancellor. My question relates to international implications and interim measures regarding the proposed Bill of Rights. Do you think Russia should have been free to ignore interim measures of the European Court of Human Rights that ruled they should not execute Aiden Aslin and Shaun Pinner, two British nationals?

In addition, Article 34 of the convention provides that states must not effectively hinder people bringing cases to the Strasbourg court. The Strasbourg court has held that this requires states to follow interim measures. Do you agree that failure to comply with an interim decision of the Strasbourg court is a breach of Article 34 of the convention?

Dominic Raab: In terms of what Russia did, of course Russia should not be engaged in the substantive violation of human rights. That is the fundamental point. Once you have engaged in a lack of due process and capital punishment, it seems a bit niche to be pointing to whether or not they comply with an interim order, I would say.

Interim orders have an interesting history. You refer to the convention, but interim orders are not actually a feature of the convention at all; they are a feature of the rules of procedure. Rule 39 is a rule of procedure of the Strasbourg court. It has no basis in the convention whatsoever, and I think this is important. Indeed, the Strasbourg court originally recognised that that was the case and, for long periods of its history, interim orders under Rule 39 were advisory, not binding. This is important.

At some pointI forget the exact date, but I could easily write you with it; it is in all the case law in all the textbooksthe Strasbourg court, of its own initiative and not because states parties in a legislative exercise of power gave them that right, changed its view and said, “Well, actually, we do think our interim orders are binding. That is quite wrong. Certainly if it happened in the jurisdictions of the UK, we would find it remarkable and unconstitutional for a court, through a rule of procedure governing its internal process, to abrogate and to take upon itself what is effectively a right of injunction. It was not intended by the convention. It does not feature in the convention. It is an internal rule of procedure of the court.

Chair: Hang on a minute, Lord Chancellor. The question was about Article 34. Lord Singh put it to you that the Strasbourg court has held that Article 34 of the convention requires states to follow interim measures. It is an interesting procedural history you have given us, but the fact is now that the court has said that Article 34, and I will read it out to you, “Individual applications. The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention of the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. The court has now held that that means the high contracting parties must obey interim measures. If I may just query your comment that the interim measure of the court in relation to Aiden Aslin and Shaun Pinner was rather niche, there was an interim measure that they should not be executed. It is hard to imagine anything less niche.

Dominic Raab: No, no, I am afraid that is not a fair characterisation of what I have just said. First of all, the appalling substantive human rights abuses were the principal issue at stake. As for Rule 39 interim orders, a court cannot judicially legislate to give itself a power to issue injunctions.

Chair: It has not judicially legislated.

Dominic Raab: It has.

Chair: It has interpreted Article 34 as being that the high contracting parties must not hinder effective exercise of the right to bring application. If you bring an application to do X and effectively your rights are going to be obliterated in the meantime, there can be no effective individual application without an interim measure. You know that as well as I do; we are both lawyers.

Dominic Raab: Not only is it clear that what you are saying is wrong, but the Strasbourg court’s initial view was that its interim orders were non-binding and advisory only.

Chair: I am talking about its current view, Lord Chancellor.

Dominic Raab: That is what I am saying.

Chair: The law develops. The law is not stuck in stone.

Dominic Raab: No, it does develop, but it develops, in this country, subject to the oversight of Parliament, and what would be remarkable and indeed

Chair: What also develops in this country—

Dominic Raab: Sorry, can I answer your question?

Chair: The jurisprudence of the court develops the law, but this is undergraduate law. It is not just Parliament; it is the courts as well.

Dominic Raab: No, no, sorry. I think you are just fundamentally wrong about this. We may have to agree to differ, but it is absolutely wrong for a court citing a rule of procedure of evidence to then create a power to injunct the Executive. That is just constitutionally wrong, and it was not even the Strasbourg court's initial view. It took many years for it to flip from a view that it was advisory to view that it was binding. I think that is wrong.

Chair: You are talking about the history here. I am talking about the current position, which does not relate to a procedural rule but to an article of the convention, and is that the court has held that Article 34 requires parties to follow interim measures. That is the question that my colleague put to you.

Dominic Raab: I am sorry. It is wrong for a court, through interpretation, to judicially legislate. That is at the heart of the constitutional strengthening, the demarcation for the separation of the powers—

Chair: You think it is wrong for the court to interpret the convention. I am astonished by this. Are you saying that it is wrong for the Strasbourg court to interpret the convention?

Dominic Raab: No, but there is a big difference between applying the law to the facts of a case and creating a power for yourself, absent any democratic oversight and particularly one as potent as a power of injunction. I am afraid that in any other jurisdiction other than this we would just be saying that this is common sense. The problem is that it has not been done as a result of clear agreement by the states parties. That is indisputable.

Q24            Lord Singh of Wimbledon: Thank you for that. Moving on very quickly, why are you proposing to prohibit UK courts from having regard to interim measures of the Strasbourg court?

Dominic Raab: Because it is not contained in the convention. As I said, I think the assumption of that power by any judicial body is quite wrong, absent any democratic oversight.

Lord Singh of Wimbledon: Why are you prohibiting it? That question has not been answered.

Dominic Raab: Yes, I think it is wrong. Do you mean that we could allow them just to take it into account? If we want to legislate to that effect, that is Parliament's prerogative, but we have not. Powers of injunction against the Executive are set out clearly in legislation and well understood. The parameters are understood. Those are decided by the legislature holding the Executive to account. I think that is right.

Lord Singh of Wimbledon: That is prohibition as far as I can see.

Q25            Baroness Ludford: Lord Chancellor, the Bill removes the requirement in Section 2 of the Human Rights Act for court to take into account the case law of the Strasbourg court. Baroness Hale has said that Section 2 ensures that the two courts speak the same language”. Would removing Section 2 lead to the Strasbourg court giving less weight to the reasoning of the UK courts?

Dominic Raab: No, I do not agree. Section 2 was originally envisaged as taking into account provision at the high-water mark under Thomas Bingham in the House of Lords, and it was effectively an obligation to match the Strasbourg case law. In fairness, it has ebbed and flowed since then, and I want to pay tribute to the current Supreme Court because I think it has restrained some of what I as a member of the legislative as well as the Executive would consider to be the excesses of the past. But what ebbs may flow. It is right to be more