Dominic Raab's UK Bill of Rights is a deceitful, underhand bill that will limit our courts

Sacrificing democratic principles to populist expediency, much of the bill is focused on those cases that irritate the headline writers of right-wing newspapers. For example, if you are ­facing deportation, the bill would make it almost ­impossible to claim that your right to family life is being infringed by a deportation order that would send you to Rwanda while your spouse and children are kept in a detention centre.

The bill removes the need to interpret other laws in ways that, as far as possible, comply with Convention rights. This was one of the main achievements of the Human Rights Act – it brought a human rights filter to the whole of the statute book. It gave the courts the power to interpret and apply existing law in a way that would take human rights seriously.

The bill would also prevent the courts from placing positive obligations on the state in the realisation of Convention rights. In many ­cases, the inability of courts to enforce positive ­obligations would in effect negate those rights, because rights often require the state to ­perform some function in order to secure them – the boundary between what some scholars refer to as “positive rights” (which require the state to act ) and “negative rights” (which require the state to refrain from acting) is blurred.

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Even a very traditional “negative right” such as the right not to be punished without a fair trial is, in effect, a “positive right” to a fair trial that requires the state to maintain a functioning judicial system with effective access to justice. The destruction of the legal aid system, which puts access to justice out of the reach of many, is a human rights issue, and a rule of law issue, which is being ignored.

The bill requires courts to defer to Parliament in determining the limits of rights and the relationship between them. Rights do have limits. One famous example is that the right to free speech does not extend to shouting “fire!” in a crowded theatre. The European Convention spells out, in general terms, what those limits are – they must be imposed by law, they must be imposed for some allowable public interest, they must be reasonably necessary in a democratic society, and so on.

Likewise, rights sometimes exist in tension with each other. For example, the right to free expression and the right to privacy may ­conflict. The courts routinely discern the limits of rights and the balance between them. They have ­developed a large body of jurisprudence which interprets and applies the general principles set out in the Convention.

The courts are not the only interpreter of rights. Governments also must do so – there is a statutory requirement under the Human Rights Act, for example, on Ministers to make a statement to Parliament, when introducing a bill to Parliament, that the bill is compatible with Convention rights. Likewise, Parliament should consider the human rights implications of the ­legislation it passed.

The courts only become involved as a ­reviewing body, when someone makes the claim that the determination of the Government and Parliament was incorrect, and that as a result of that they have been harmed in some way. Courts are a vital check and balance.

This bill would effectively remove that check. The terrible lie at the heart of it is the idea that, in a parliamentary democracy, it is for Parliament – and Parliament alone – to determine the nature and extent of rights, and the balance ­between them.

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That makes Parliament absolute. It is pure authoritarian populism. It denies people the ­opportunity, when harmed, to seek redress in another forum. Perhaps that is acceptable for those who have political clout. People at the margins, whose voices are never heard in ­majoritarian politics, for whom no party speaks up, are most in danger – refugees, prisoners, outsiders, minorities, individuals. These are the people for whom the European Convention was written – so that we could say, after 1945, ­“Never Again” to what happened.

There is a bigger picture to this. The problem is not just with this bill. It is with the ­unwritten constitution that allows a bill like this to be passed. Under a proper constitution, populist governments with whipped majorities cannot just tear up constitutional rights.

The weakness of the Human Rights Act was that it was a mere Act of Parliament, which can be repealed by other Acts of Parliament. In an independent Scotland, we must place our rights upon a constitutional – not merely statutory – basis, so that they are better protected against such vandalism.