17th September 2021
Over at Joshua Rozenberg’s blog there is further discussion of the appointment of Dominic Raab as lord chancellor – following my (well-received) post yesterday.
Rozenberg makes two solid, good points.
The first – which I did not cover, but is obvious – is the paucity of junior ministers in the house of commons to support Raab.
Either by design or by accident, this at a stroke undermines the position of the new lord chancellor and deputy prime minister.
It may even indicate that Raab neglected to make insistence on this point before his appointment – and that for him the form and style of ‘deputy prime minister’ was a higher priority than the ‘boots on the ground’ of actual junior ministers in the commons.
A good spot by Rozenberg.
The second – which I refer to but Rozenberg spells out in more detail – is about the future of the human rights act.
Raab now has a decision – perhaps a huge decision.
Will he choose to spend his (perhaps) limited time as lord chancellor in his eternal quest to repeal the human rights act – a task which will be complicated and time-consuming and maybe ultimately futile.
Or will he choose to spend his limited ministerial time dealing with more immediate and everyday issues facing the ministry of justice – from prisons to effective criminal justice.
What will be Raab’s priority?
Does Raab want to be known as the politician who repealed the human rights act?
Or does he want to be a genuinely reforming lord chancellor, addressing a justice system in crisis and near-collapse?
For he is unlikely to have the time and resources to do both.
**
Hello there – if you value this daily, free-to-read and independent commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
Please do support this sceptical liberal constitutionalist blog – and do not assume it can keep going without your support.
***
You can subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
Is it worth asking? He will want to be know for repealing the Human Rights Act, in the same way that Johnson ‘Got Brexit Done’ or that Priti Patel wants to turn migrants back to France. None may happen but the soundbites play well.
I dont know much about the specifics of the Human Rights Act but I do think there is an argument for making SCOTUK the final court of appeal. In the end a democracy is about governing yourself, not having a body that is unaccountable to voters.
This is not an idiot Brexit “control” point. The US seems to do a good job with SCOTUS nit subject t international bodies and I dont see why the UK couldn’t do the same. It seems all the more important since SCs by their nature tend to mission creep and enter decisions of daily life ( I remember ECJ or ECHR deciding that French inheritance law would have to include pro rata shares for illegitimate children, which seemed an unwarranted interference in something the French should be able to decide for themselves politically and judicially).
Of course you would have to preserve whatever has been achieved by HRA to date, presumably passing a new act and/or specifically accepting decisions to date as SCOTUK decisions and precedent.
Ironically it was Labour that originally opposed going ECHR at the top level precisely because it worried that the opposition would use it to thwart policy. Hence second tier membership until Blair went on his campaign to be more EU than the EU.
‘not having a body that is unaccountable to voters’
An independent judiciary literally means that courts – including the supreme court – are not ‘accountable to voters’. That is their point.
Accountable in the sense that the voter has a say in the system. SCOTUS is “accountable” in that sense. All courts are appointed by someone and that someone should be accountable to the people the court judges. For example, you rightly berate the Tories for the abysmal handling of the courts, reminding us that the courts are not totally independent in any system.
The UK is a signatory to the Council of Europe – and so the UK’s voters ‘have a say in the system’
I afraid your line of attack on the ECHR falls flat
Bring a signatory to the Council of Europe is not the same thing, as I suspect you understand.
It’s not an “attack” on ECHR. I just think that as in the US, it is better to have all decisions in your own country: the buck stops at the border. That seems especially relevant in a Brexit Britain where it would be only too easy to whip up a bit of xenophobia against “foreign judges”. Based on SCOTUK’s record I dont see much risk of a weakening of HR: the justices have shown themselves quite able to ignore the Daily Mail.
It’s not a strong preference and there is the obvious “if it ain’t broken dont fix it” but if Brexit is going to lead to it anyway, I am not sure why it cannot be done in away that is relatively harmless (of course that is a big if given the current bunch). I suspect that blindly defending ECHR and HRA as the only way risks being counterproductive.
Simon, you have a peculiarly strong view for someone who professes not to know much about the specifics.
The European Convention on Human Rights is absolutely about “daily life”. For example, Article 8 says “Everyone has the right to respect for his private and family life, his home and his correspondence.” You can’t get much more everyday than that. Not to mention freedom of conscience and religion, freedom of expression, freedom of association.
The case that you are referring to was decision of the European Court of Human Rights in the Mazurek case in 2010. http://hudoc.echr.coe.int/eng?i=001-58456
The court was asked to consider whether it was contrary to the Convention that, under French inheritance law as it stood, an illegitimate child was entitled to half the share of a legitimate child.
As a reminder, there is a mandatory system of forced heirship in France which gives each child a minimum share of their parent’s estate.
Perhaps you are content with accident of birth determining whether someone counts as a whole person or half a person, but the Court ruled at paragraphs 54 and 55 that:
“54. The only issue submitted to the Court concerns the question of inheritance from the mother by her two children, one born out of wedlock and the other adulterine. The Court does not find any ground in the instant case on which to justify discrimination based on birth out of wedlock. In any event, an adulterine child cannot be blamed for circumstances for which he or she is not responsible. It is an inescapable finding that the applicant was penalised, on account of his status as an adulterine child, in the division of the assets of the estate.
55. Having regard to all the foregoing, the Court concludes that there was not a reasonable relationship of proportionality between the means employed and the aim pursued.”
So that was a breach of Article 1 of Protocol 1 (which sets out the rights to enjoy, and not deprived of, private property) taken with Article 14 (the right to freedom from discrimination on inter alia grounds of birth).
The decision was entirely consistent with similar decisions that the European Court of Human Rights had reached in similar cases since 1979 (Marckx, Belgium) and 1987 (Inze, Austria).
As far as I am aware, the French just shrugged and changed their law to make it compliant with the Convention.
Whereas, for example, the Court has ruled several times that the UK is in breach of the Convention by denying all prisoners (whatever their crime, and however long or short their sentence) the ability to vote, and the UK continues to ignore them.
And yet as foreign secretary Raab felt entitled to lecture other countries about their human rights record. I have no doubt that he will continue to do that, while trying his best to dismantle the tenuous ability people in the UK to seek any effective redress for egregious infringements of their human rights.
Excellent clear description of the French case thank you.
Thank you for this, which is very helpful.
Thank you for the detail which I did not know.
My point is not whether rights should exist but who should uphold them. The US does just fine without an international court of appeal.
And yes, I would consider the French case as intrusive even if logical. It really is up to the French as a society to decide or fix detail. That also goes to what “rights” should be as opposed to moral/political decisions about how we run society. “Rights” are essentially about protection of the individual against the state and church: free speech (the US kind, not the edited European version), assembly, religious (non) observance, freedom from arbitrary arrest, fair trial, equality. Home, health, job and the host of other rights that are bandied around increasingly are what we elect governments for. French inheritance law is part of the latter. Voting rights for prisoners is absolutely a domestic issue as is punishment and parole.
The further away from the citizen you put the top if any system, the more remote and unaccountable it feels. Did Assange’s extradition need to go to ECHR or the recent case about ending infant lives? Encouragingly ECHR upheld SCOTUK but the process was stretched out, justice was made slower and more expensive and people were essentially encouraged to doubt SCOTUK. Are we really saying that it makes sense to second guess our own supreme court, who will take note of decisions of rights and morality elsewhere and will usually be presented with those by one side or the other? If the UK had weak institutions and a history of abuse, there would be a case for an external referee but it doesn’t.
Lastly all institutions grow their sphere of operation over time. Supreme courts are no different, as Sumption pointed out in his Reith Lectures. So adding another one outside your country just adds to that.
No contest. The most lucrative rewards will be directly linked to repealing the HRA. The rest is for someone more predicated to fairness and equality.
A third thought – as ever narrowly political – enters my mind.
Raab’s well-heeled constituency is home to a considerable number of lawyers – and has a distinctive liberal graduate wet Tory style.
Raab’s local constituency has told him to keep his mouth shut about Brexit as it a vote loser there.
Raab will have to bear in mind that a full frontal assault on the HRA is likely to lose him more votes than it will gain.
Is it the hill upon which he wants to end his political career?
I find it simply objectionable or, rather, very much disgusting that anyone would plan to reject legislation enacting the Convention on Human Rights in the UK.
It equates to denying the rights that descend from the Déclaration Universelle des Droits de l’Homme of 1789.
I sincerely hope to have misunderstood the issue as this has a paramount civil and political significance.
You would still have a considerable body of law protecting rights in the UK including the 1688 Bill of Rights which was part fo the basis for both the US and French declarations as well as the UNDHR and the ECHR…..
I dont know if Raab and his rabble want to repeal all ECHR law or simply make SCOTUK the ultimate supreme court and to take further ECHR decisions on advisement rather than as automatic law. I suspect that arguing that it is all or nothing is the sort of position that helped Brexit in the first place. What matters is the substance not the facade.
What status does the UN version hold in UK law? I know we are a signatory and repeal The Human Rights Act he may, however would our government not still be required to abide by that?
Following on from Dismal Journalist’s post – Raab’s is a seat which the Lib Dems would very much like to take and with a slender 2743 majority, it won’t require anything like a Chesham and Amersham upset to do so.
I would fully expect him to not stand at the next election to avoid this happening.
It is alas likely that Raab, run by the principles of sovereignty rather than cooperation, will focus on HRA rather than negotiating enough money from the Treasury to fix the Justice system. So both elements of this choice will erode the human rights of the people of the UK, dragging it further down to a place where its rhetoric would normally make it a pariah.
may be it will be both, the way is already been laid out so to speak.
you touched on this aspect just recently with your Blog about the WOTP.
The ideas presented on how to change all those EU laws in the UK rule book, already have the idea of an WOTP Internet Platform to make the GOV decision on what to change and how more efficent or what ever platitude they used to sell it.
Parliament has by UK law no Input or scrutiny in how to change this Law’s anyway.
And from the experience of the last years I would think that every Idea that will come out of this platform will trump every unwritten constitutional convention the UK may had.
As far as I am aware almost nobody will be able to check or scrutinize if it where two or two million or twenty million or even not one expressing their will . They would be able to define the WOTP and for sure most of the UK Media will help to sell those ideas what ever they may be. So he can be a reforming Lord Chancellor and abolish the Human Rights Act at the same Time. In the End it is the will of the People. And yes I know it sound like CT but we life interesting times and anything seems possible at the moment IMHO