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21 October 2021

Dominic Raab’s assault on the Human Rights Act is dangerously misguided

The Justice Secretary appears to believe it is intolerable that judges should stop an elected government from doing what it wants.

By David Gauke

The summer of 2005 was not a good time to be a Conservative. The party had been out of power for the longest period since the First World War and had just been roundly defeated for the third time in a general election, winning fewer seats than Labour in 1983.

The media had little interest in what the Conservatives had to say (the country was watching Blair/Brown in real time) and, in truth, it had been a long time since the Conservatives had anything of interest to say. The country might no longer have been enamoured with New Labour but the Tories had little to offer than opportunistic complaints. They lacked a coherent critique of the government or an explanation of how things would be different under the Conservatives.

At this point, a paper was published setting out the answer. Twenty-three youngish Conservatives (strikingly, all were men), including some newly elected backbenchers (some of whom went on to have quite prominent careers), put their names to it.

Direct Democracy: An Agenda for a New Model Party set out how the Conservatives should champion “devolution, localism, direct democracy, personal freedom”.  The “great challenge of our times”, it thundered, was “the need to reform those public institutions which exist to serve the public interest in a way which makes them truly responsive to public demands”, shifting power “from those elites currently administering and centralising power”, and “empowering individuals, families and communities to take control over the decisions that intimately affect their quality of life”. 

The public felt excluded, decisions were made by people who were not accountable, and this was leading to disenchantment. Conservatives (who had long been excluded from power, been unable to hold the government to account and felt thoroughly disenchanted) were particularly sensitive to this public mood. It was time to give power to the people.

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[see also: “The justice system is failing too many women”: Robert Buckland on policing and MPs’ security]

For the most part, Direct Democracy focuses on domestic policies. It makes the case for directly elected police commissioners (or “sheriffs”, as it prefers to call them), radical marketisation of health and education and self-funding local authorities. 

Almost as an aside, there is a short section on the EU. “Our approach to European integration flows naturally from our domestic agenda. If we want decisions to be taken as closely as possible to the people they affect, they plainly should not be made in Brussels.” To ensure that parliament always had the final say on regulations, it casually advocated repealing sections two and three of the European Communities Act. In an even shorter section, it also advocates the repeal of the power-sharing settlement resulting from the Good Friday Agreement “on democratic grounds”. 

Direct Democracy makes clear that this was not “a manifesto for instant implementation” but merely designed to “open up debate”.  The suggestions were certainly bold and radical, to the extent that most of the 23 would look back on at least some of the ideas with embarrassment. Speaking for one of them, ahem, I most certainly do.

It is the section on the judiciary that is most uncomfortable for me to read – although it is a great relief that no one pointed out my connection to Direct Democracy when I was lord chancellor.

In a section entitled “Humbling the Judiciary”, it was proposed that locally elected “sheriffs” would set sentencing guidelines, that there should be “a degree of democratic control over judicial appointments” (“on balance” directly electing judges would be “disproportionate”, but “a process of transparent parliamentary hearings” was recommended), and the authority of parliament should be “stated explicitly in a “reserve powers act”, which would delineate a number of areas where MPs’ decisions were supreme”. 

I was reminded of all this when reading Dominic Raab’s interview with the Sunday Telegraph in which he complained about the European Court of Human Rights “dictating” how public services are delivered and wants to reduce the extent of its reach, worried about “prerogatives of parliament from being whittled away by judicial legislation” and said that he was considering a “mechanism” whereby parliament “corrects” judgments which are “wrong”. 

On the last point, it is not entirely clear what he has in mind (it sounds like the mechanism might be an Act of Parliament). As for his concerns about the Strasbourg court, his approach may result in the UK being taken there more often unless he wants us to leave the European Convention on Human Rights altogether.

Putting aside such details, at the heart of the new Lord Chancellor’s approach appears to be the belief that it is intolerable that judges – especially in foreign courts but also domestic ones – should be able to stop an elected government from doing what it wants to do.  The will of the people must prevail over the will of out-of-touch elites.

As with Lord Frost’s threats to pass domestic legislation to overrule international law, it raises important questions. Does the government believe international law should be respected? Where does it stand on the separation of powers? How important is the rule of law to it?

Many will intuitively sympathise with Raab’s framing of this debate – it is simply about democracy. But it is more complex than this absolutism suggests. There is a need for checks and balances and supporting institutions that protect our liberty. The Lord Chancellor should understand the full extent of this and put his populist radicalism behind him.

[see also: “I didn’t set out to be any kind of icon”: Brenda Hale on becoming an anti-Brexit hero]

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