Justice Secretary Dominic Raab is guilty of "naive hyperbole." Photo: Imageplotter / Alamy

Ministers, you are not meant to enjoy legal challenge. That’s the point

A former director of public prosecutions says attacks on the Human Rights Act just prove it’s working
December 9, 2021

When, in 2009, the Conservative MP Jesse Norman and commentator Peter Oborne wrote a pamphlet about the European Convention on Human Rights, they came up with an unexpected title: “Churchill’s Legacy.” Yet their thesis—that the end of the Second World War brought an opportunity to bestow certain blessings of the English common law upon a battered Europe—would hardly have been controversial in the 1940s.

Setting aside a measure of sentimentalism, it is perfectly true that David Maxwell Fyfe and those other Tory lawyers who worked on the text of this postwar bill of rights believed their efforts necessary, even a precondition, to turning the continent away from brutality and rendering relations between citizen and state more benign. The English law, these men believed, with some imperial insouciance, had centuries of kindly experience from which millions of victims of tyranny might now benefit.

In fact, the convention itself was not a particularly radical document. It privileged individual rights of process, property and belief over social or economic rights, for example, and it limited the power of states to restrict personal choice or to direct behaviour in ways no postwar capitalist could resent (but that a mid-century social democrat might). Above all, it gently asserted the rights of citizens against their governments, whose powers were to be curtailed so that people might be free. Stripped bare, this was a conservative, anti-Soviet model.

This is not to say that the rights of personal autonomy enshrined in its clauses fail to stir. I once heard the great Tom Bingham, a former lord chief justice and hardy protagonist for the rule of law, face down political attacks on those damnable “European” rights that had bequeathed us, apparently, a charter for criminals. In a crowded hall, he demanded: the right to life, to a fair trial, to privacy, to property, to freedom of belief, our power to hold governments to account—which of these shall we abandon? There was no answer.

In view of his recent rhetoric, it seems that the new secretary of state for justice, Dominic Raab, favours a different approach. So, we might ask this lesser figure, given the chance (which he surely now has), which would he set aside? Put another way, what is his answer? Well, it seems it’s not a very loud one.

True, over the past two decades it has been part of the stock-in-trade of government ministers of all persuasions to fulminate against Tony Blair’s Human Rights Act. By incorporating the European Convention directly into UK domestic law, it has invited more direct challenges to government decisions, more judicial reviews placing unlawful ministerial conduct under the public spotlight and subject to remedy—and why would secretaries of state enjoy this? It’s really part of the point that they don’t.

It may have been a modern Tory dream to create a “British” Bill of Rights, but to what end?

But the eyes of politicians have always been bigger than their stomachs. It may have been a modern Tory dream to do away with something rather embarrassingly called a “European” Convention and to create in its place a “British” Bill of Rights, but to what end? Such a text would surely just repeat the same clauses drafted all those decades ago at Churchill’s urging. And so long as the UK remains a member of the Council of Europe (which it surely will), no British Bill of Rights could ever prevent Britons from taking cases against their own government to the European Court of Human Rights in Strasbourg, or block that court from forcing remedies on the UK government for its wrongdoing.

Judicial review has been an equally indigestible meal for its politician opponents. Last year, Boris Johnson set up an Independent Review of Administrative Law, clearly intended by a prime minister unaffectionate towards the courts to foreshadow major restrictions on future legal challenges to governments. Unfortunately, the review’s members (led by the well-regarded peer Edward Faulks) hadn’t read the script. They concluded that the problems of judicial review had been exaggerated, that it remained an essential bulwark against government misconduct and that little or no reform was required. When the then lord chancellor Robert Buckland tried to put some positive spin on all this, it proved too much for Faulks, who slapped him down. Shades of Maxwell Fyfe.

And so to the legislation now before parliament. After all the sound and fury, the Judicial Review and Courts Bill is hardly the great neutering reform that the prime minister (and, we may presume from his naive hyperbole, Dominic Raab) had wanted. It is true that one clause allows some delay to the quashing of unlawful ministerial action, and a second prevents appeals from certain immigration tribunals, unless natural justice requires otherwise. But this is relatively thin gruel, easily put to one side by the courts if they wish. Ministers may continue to rave about activist lawyers and wig-wearing enemies of the people—and Raab with the worst of them. But they will find no simple legislative route out of their pain, whose cause is the bracing stroke of the rule of law; and that is exactly as it should be.