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Monday, October 18, 2021

Do we have the Justice Secretary we deserve?

Having been demoted from Foreign Secretary, after a near catastophic performance, Dominic Raab is setting out to make his mark in charge of the Justice department and already he has dived head first into deep water.

Raab's determination to undermine human rights legislation is very much in keeping with the authoritarian impulses of this government, but does he understand exactly what he is doing?

According to the Independent, the new Justice Secretary wants to legislate to “correct” court judgments in human rights cases that go against the government. That includes judgements made by the European Court of Human Rights at Strasbourg, to whose judgements the UK is bound by treaty. Has anybody told him that you cannot legislate to override international treaties without screwing up relations with other countries, including trade deals? Haven't this government learnt anything from the Brexit debacle?:

In an interview with the Sunday Telegraph, he said that he was devising a mechanism to allow ministers to introduce ad hoc legislation to “correct” court judgments, whether passed by the ECHR in Strasbourg or by UK judges, which he regards as creating new law through “judicial legislation” rather than the decisions of elected politicians.

“We will get into the habit of legislating on a more periodic basis and thinking about the mechanism for that,” he said. “Where there have been judgments that – albeit properly and duly delivered by the courts – we think are wrong, the right thing is for parliament to legislate to correct them."

Mr Raab said it was wrong for the European judges to “dictate” to the UK on how its armed forces, police, welfare system and health service should operate.

“We want the Supreme Court to have a last word on interpreting the laws of the land, not the Strasbourg court,” he said.

“We also want to protect and preserve the prerogatives of parliament from being whittled away by judicial legislation, abroad or indeed at home.”

The former head of the government’s legal service, Jonathan Jones, has branded the deputy prime minister’s proposals “muddled”, while a professor of public law at Cambridge University described them as “deeply troubling” and argued that they threatened to undermine basic standards of good governance. As if that mattered to Dominic Raab.

Human rights lawyer Jessica Simor QC, of Matrix Chambers, is absolutely right when she says Raab is peddling a “false narrative” that foreign judges were ruling over the UK court system, when in fact the Human Rights Act was introduced specifically to ensure that British people were able to have their rights upheld in a domestic court rather than having to go to the ECHR:

Watering down its provisions would simply mean more complaints going to Strasbourg and more rulings against the UK, unless the government intended to pull Britain out of the European Convention on Human Rights altogether, which would be “a step into a dark place for this country and the world”, warned Ms Simor.

The most disturbing verdict however, comes from Cambridge professor of public law Mark Elliott. He has pointed to a recent Supreme Court ruling, saying that allowing a minister to overrule a decision of the judiciary simply because he did not agree with it would cut across “principles that are fundamental components of the rule of law”:

Mr Raab appeared to be suggesting changes that would give the government the power to correct court decisions through secondary legislation, which does not have to be subjected to scrutiny or votes in parliament.

“If that is what is in contemplation, then that is profoundly problematic,” said Prof Elliott. “Indeed it turns constitutional principle on its head.

“Ministerial power to do this would itself be deeply troubling. It would reassign a basic judicial role – interpreting the law – to ministers.

“Ultimately, this all strikes me as part of a project to enhance executive supremacy by treating courts, whether foreign or domestic, as unwelcome interlopers.

“And yet all of this masquerades as an attempt to protect parliament. The reality of this executive power project, as we might call it, is that it will be the executive that is the principal beneficiary of such changes, and the loser will be basic standards of good governance.”

In other words this is a project to circumvent the consitution and our democratic process.

The narrative that has is enabling Raab has built up over many years in the media and through the ill-informed prnouncements of right wing politicians seeking to make a name for themselves. In that regard, we only have ourselves to blame for allowing it to develop in this way. Should we not have been more vocal in making the case for human rights as Liberty have done in their response to Raab? They say:

“The Human Rights Act helped families of those who died in the Hillsborough disaster to secure justice for their loved ones. It has enabled disabled people to challenge the removal of their benefit payments. It has been used by families to win investigations into the deaths of their family members after poor treatment and neglect, and it helped LGBT veterans get their medals back after they were kicked out of the armed forces.

“The Human Rights Act has made many people’s lives better, allowing ordinary people to challenge governments and public authorities when they get it wrong. No one should be above the law – but this statement, along with the Policing Bill, the Judicial Review Bill and the Elections Bill, shows a Government that is actively planning to erode our ability to access justice and stand up to power – in the streets, in the courts, or in the polling booth.”

Now is the time to take a stand, before it is too late.
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