Charles MOORE
The idea that the courts should act semi-politically is a recent one, and it’s time to start rolling it back
Because of the horror of Covid-19, everything that happened before it now seems distant. Few have been affected by the experience more than the Prime Minister, who was seriously ill. This week, for example, marking his personal change with a change of policy, he announced much stronger government interventions to prevent people getting fat.
Also this week, however, Boris Johnson celebrates his first anniversary in office. We may have partly forgotten the parliamentary and judicial traumas which ensued after he succeeded Theresa May, but he emphatically has not. He knows that, if we want this country to be governed properly post-brexit, they must not be allowed to happen again.
The Tories’ massive general election victory in December achieved the first bit of Brexit and largely stilled the parliamentary problem – though I worry that No 10 is handling relations with its own backbenchers ineptly. But the judicial problem remains.
I am not speaking mainly of the characters of individual senior judges. Most of them are conscientious people. With the departure of Lady Hale, the Supreme Court is presided over by the much more careful Lord Reed. And when the measured Lord Chief Justice, Lord Burnett, spoke at the swearing in of the new (pro-brexit) Attorney General, Suella Braverman, this year, he promised to “disappoint” commentators who were looking for a display of “endless pyrotechnics” over legal and constitutional reform.
What remains unresolved is the future relationship of our judiciary, our officialdom, and their concept of human rights law with a country that is becoming truly independent once again. One main sticking point in the UK-EU trade and other negotiations is about whether Britain will continue to have to submit to the ultimate decision of the European Court of Justice in matters arising from any deal. Our Government’s answer is “No”. This is one reason to believe it is serious about not extending these negotiations beyond December 31. It would rather accept no deal as the price. If we leave the EU but still answer to its courts, we become even weaker than we were when, as a member state, we had a say.
This issue predates the Brexit battle. It goes back to a different concept of law which has been growing fast in Britain for half a century. The new model first achieved political power under Tony Blair (who was a lawyer, of course, and is married to a human rights one). Perhaps because Labour had been out of power for so long, Mr Blair bought into the belief that the courts should act semi-politically – a permanent opposition to the government, in place of the actual, parliamentary opposition which had proved so useless.
The idea of international human rights law seemed to Blairites a wonderful tool for entrenching pro-european, centre-left power in Britain. High fees and conspicuous virtue seemed to go together. Human rights lawyers became almost sexy: Bridget Jones’s boyfriend, Mark Darcy, was a human rights lawyer. Mr Blair’s first administration embedded the European Convention on Human Rights into our domestic law.
It also abolished the “Law Lords”, our traditionally low-key way of dealing with justice at the highest level, and replaced it with the Supreme Court. The new court was given a grandiose building facing Parliament. The more self-important judges proudly saw this as a standing reproach to mere elected politicians. They promoted the concept of a “collective view” of the judiciary, often an anti-government one. This goes against the British tradition that each judge should be independent not just of government but also of his colleagues.
Ever since the Blair era, human rights law has become a pervasive meme in public policy and administration. Although upholding many valuable principles, international human rights law also disables the elected government from responding to the wishes of actual voters. Famous examples include the obstacles thrown up against immigration controls and the astonishing extent to which such rights protect violent extremists and terrorists. At the same time, the law has seemed a positive obstacle to offering fair protection, for example, to veterans of British security forces in the Troubles in Northern Ireland.
Related to human rights law there arose a new doctrine about the place of international law in our government. Such law was elevated from its important role of doing justice beyond national borders to the holy of holies which is supposed to command the ultimate loyalty of officialdom. Among the legal and civil service classes last autumn, this loyalty was felt so strongly that they came close to open revolt. To many of them, no deal was almost an act of outlawry. In particular, what they saw (wrongly, I think) as Brexit’s repudiation of the Good Friday Agreement in Northern Ireland was to them a blasphemy against their belief system. Some officials evenly privately warned the elected government that they might refuse to obey its orders.
As for the Supreme Court, its judgment in the prorogation case last September was so strongly motivated by political disapproval of the government’s actions that it seemed careless of “the Crown in Parliament”, which is the centrepiece of our constitution.
For many years, these international/ human rights concepts swept all before them, although from time to time a few braver spirits on the Tory benches would pipe up, only to be silenced. In 2015, however, the think tank Policy Exchange began an influential intellectual pushback. Yes, said its new Judicial Power Project (JPP), in a free society judges have an indispensable role in doing justice according to law, but this must be compatible with the rights of a parliamentary democracy and the legitimate needs of an elected government. It was not true, the JPP pointed out, that only tin-pot countries like Belarus refuse to accept the ultimate jurisdiction of an international human rights court. What about free and modern countries such as Australia and New Zealand? As Brexit enthusiasm grew, so did interest in the JPP agenda.
This week, it has emerged that the Government is dropping its manifesto pledge to set up a Constitution, Democracy and Human Rights Commission. This should be seen not as a jettisoning of these subjects, but the opposite. Commissions on great themes tend to spread themselves too widely, take up too much time, and produce no result. Instead, the Government seems set to pursue the issues by other means. Soon there will be a reappraisal of Judicial Review (JR). JR used to be the legitimate practice of ensuring that governments only acted within the scope of the powers conferred on them. It has increasingly become a means to question the merits of the decisions governments have made. It must rein back.
The long-touted repeal of the Human Rights Act is now being pursued. The Government may even find a way of withdrawing from the treaty which holds us in the European Court of Human Rights. It hopes to assert its sovereign rights over Northern Ireland by finding a way to avoid what the EU sees as Britain’s commitment to impose goods checks between Britain and the Province in the Irish Sea.
In a free country, the law should be the law of the land, over which Parliament is sovereign, not the rule of amorphous concepts controlled by lawyers – especially not lawyers outside our jurisdiction. Until that is achieved, our country’s new freedom is precarious.