18th October 2021
Usually when something daft about policy is reported in the Sunday papers, you can sort-of work out the chain of miscommunication.
For example: minister to ‘special adviser’ to time-poor reporter on a background (and thereby to be re-worded) basis.
There is little wonder that the final report is often, well, inexact.
But.
In yesterday’s Telegraph, there was a report based on an on-the-record interview with Dominic Raab, the new lord chancellor and justice secretary.
And as an on-the-record interview, the usual disclaimers do not apply.
This would be what the minister actually said (or a close approximation).
News reporters can be guilty of many sins, but they rarely make up direct statements, and still less quotations.
And the lord chancellor and justice secretary is reported to have said something very striking indeed:
‘Asked about his plans to reform the Human Rights Act, Mr Raab revealed that he is devising a “mechanism” to allow the Government to introduce ad hoc legislation to “correct” court judgments that ministers believe are “incorrect”.’
The scare-quotes are lovely – but they do indicate these are the words that Raab actually used, as opposed to the rest which may be paraphrased.
Just read that statement again.
And think about it.
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First: it is not for ministers to change the law on the basis of what they think are ‘correct’ or ‘incorrect’ court judgments.
This is about as basic a breach of the separation of powers as one can imagine.
Just as judges should not make policy decisions instead of ministers, ministers should not make judicial decisions instead of judges.
If a minister disagrees with a judgment then that is one thing – but it is not for the minister to gainsay the judge on the correctness of the law.
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But that is not even the strangest thing about the statement.
Raab wants to devise ‘mechanism’ for ministers to make these ‘corrections’ – and not parliament.
But it should be parliament, operating under the doctrine of parliamentary supremacy, that should make or unmake any law in these circumstances – and by the means of primary legislation.
What Raab is proposing is a separate ‘mechanism’ where (a) laws can be made or unmade by ministerial decision and (b) that decision will be based on a minister subjectively thinking that a judicial determination is ‘incorrect’.
And note: this is not just for any old laws.
Oh no.
This is for those laws where a court – usually a senior and experienced judge or panel of judges – has found that there has been a breach of fundamental rights.
If any legal ‘corrections’ should not be done in a fast-track way, without parliamentary involvement and on the basis of mere ministerial opinion, then it should not be where a court has found there to be breaches of fundamental rights.
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In essence, what the lord chancellor and justice secretary is actually proposing is that a minister can by executive fiat reverse a judgment on the basis of a subjective opinion about ‘correctness’ when a court has found there to be a breach of a fundamental right.
Think about that.
And who is proposing this?
The very cabinet minister who has a constitutional role, recognised in statute, of protecting the rule of law.
Maybe the minister was misquoted or misunderstood, but there has not been any correction or clarification of the Sunday press report.
So presumably Raab is therefore happy with how he has been reported.
But.
There is already a mechanism where the other elements of the state can respond to such (perceived) judicial over-reaches.
It is called parliament.
And it is for parliament to decide how to respond – and to do by primary legislation.
And not ministers.
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Or in the words of the the government’s former chief lawyer:
Lots of muddle here. Eg why is there a need to “devise a mechanism” for government to introduce legislation? We already have these things called “Acts of Parliament”. Unless of course there’s another attempt to *reduce* Parliament’s involvement. pic.twitter.com/H6eT1Ptnuo
— Jonathan Jones (@SirJJKC) October 17, 2021
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They are quite a frightening group of people, but could it be that ‘introduce’ here means introduce to Parliament as a Bill and hope and whip to have it passed into law?
Quite.
For as long as we have first-past-the-post, effective party discipline, and a parliamentary system (as opposed to a directly elected head of government) there is generally not going to be that much difference in practice between “the government changes the law” and “parliament changes the law”.
And then there is secondary legislation which as we now know from pandemic laws can be unexpectedly far-reaching.
It is tempting to dismiss this as a meander in the mind of Dim Dom, however there is a risk of dangerous complacency.
How can we muster the attention of the men in grey suits? What does it take to make Parliament move?
I had low expectations of “senior lawyer” Raab when he was appointed to this job. He continues to surprise me. He clearly thinks it is the Lord Chancellor’s job to undermine the rule of law.
I am reminded of this section from David Puttnam’s brilliant recent speech.
There is a short speech in the 1987 movie ‘Broadcast News’ that I’ve used a number of times when teaching my communication students.
At one point the character ‘Aaron’, played by Albert Brooks says:
“What do you think the devil will look like when he next comes around? Nobody’s going to be taken in if he starts flashing a long red pointy tail.
No, what he’ll do is just bit by bit lower standards where they’re important. Just coax along flash over substance …. just a tiny bit at a time!”
No wonder Raab’s legal career was such a short one – he appears either to know nothing about how the law is supposed to work, or, worse still, to have nothing but contempt for judicial independence. Clearly he learned absolutely nothing from his secondment at Liberty.
My understanding is that there is no prerogative power, recognised by common law, for this to happen. Therefore, it would need to be some sort of statutory framework.
However, it is likely that any decision made by a minister within such a framework would be open to judicial review and potentially challenged under the HRA. As any such decision would be secondary legislation of some kind it is likely that the court could disapply it if it found it in conflict with ECHR rights, or any other statutory provision.
To make this effective would seem more trouble than it’s worth?
But surely Raab’s “cocktail” of measures is also “designed” to emasculate Judicial Review and the ECHR? So it is a triple assault on democracy.
As for it being more trouble than it is worth my sense is that for this Government anything which makes it more difficult for its exercise of power to be challenged is deemed “worth it”. And with a supine majority of about 80 it will do all of this under the cloak of Parliamentary approval.
It is deeply troubling.
Well, we already have Orders in Council. It seems they are subject to judicial review, but as the former residents of the Chagos Islands found, they can be rather hard to overturn. And it would be rather bold for the current government to overturn 350 years of history since the Civil War and ask the Queen to rule through decrees made by her Privy Council.
I expect Raab has in mind some sort of new fast-track Parliamentary procedure, to enable him to introduce and pass primary legislation that overturns any court decisions he dislikes, with limited opportunity for review or delay.
No doubt Raab has a sensitive appreciation for the mood of the right-thinking majority, as published daily in several popular newspapers. Why should anyone – not least judges or other elites – stand in the way of him delivering on the will of the people?
I feel there would be some protections in the case of a new “fast track” procedure being introduced.
(I) if it was introduced by any means other than primary legislation, it’s introduction could be challenged as unlawful due to a fettering/restricting of parliamentary sovereignty (as per prorogation cases)
(Ii) if it was introduced by primary legislation, one would have to hope that parliament would not be so stupid as to let it pass….
Entirely agree it’s concerning though.
Much would turn on the grounds of challenge to a particular decision. If the grounds of challenge meant that it would not be possible for a minister to make a decision under the framework lawfully as a matter of principle, the decision could not be set aside but e.g. a declaration of incompatibility could be made to the statutory framework as a whole. The better argument would be that it would be possible, on at least some theoretical set of facts, for the minister to make a lawful decision (consistent with HRA and other relevant statutes) under the framework, but it is not this set of facts.
The other alternative is that the government try to push through Parliament an Act which gives individuals ministers the power to make decisions which have the force of primary legislation in the courts, creating a constitutional crisis arguably greater than the prorogation case.
Montesquieu is rolling over in his grave.
OT: my browser (Opera) warned me that making a donation was likely to take me to a dodgy slte, but did allow me to proceed.
“News reporters can be guilty of many sins, but they rarely make up direct statements, and still less quotations.”
You might not expect a journalist behaving with such little integrity, and to have demonstrated the same lack of integrity so many other times, to go on to the highest office in the land. After all, it would be ridiculous to have an untrustworthy liar as prime minister, wouldn’t it?
Johnson made up the news that’s the difference
HMG seems verry sure that labour wont be in government for a long time.
Many left-leaning voters like me agree with HMG!
Under Starmer’s leadership, the Labour party is (very rapidly) dying the death of a thousand cuts. A brilliant new left-wing leader taking over right now just might be able to keep the party alive and get the harm undone within a 5 year timescale … but the odds would be against him / her.
And there’s no-one within Labour (not a left-winger, centrist or a right-winger) who appears to have the interpersonal, organisational and political skills necessary to transform Labour back into a going concern.
You say
“But it should be parliament, operating under the doctrine of parliamentary supremacy, that should make or unmake any law in these circumstances – and by the means of primary legislation.”
A question that exercises me, particularly in regard to our current crop of MPs, is ‘Do MPs actually have any idea of how our constitution ‘works’ ? Is there any requirement that they understand the respective functions of the Legislature, the Executive and the Judiciary when they start their parliamentary career? Do they not understand that since a monarch’s head was removed from his body Parliament has been working to remove overweening Executive power and establish Parliamentary supremacy? Or are they just relying on the ignorance of the general public to sidestep this inconvenient little fact?
Perhaps they should all be given a thorough briefing on our constitutional history and the Separation of Powers before taking up their posts?
Most MPs, particularly Conservative ones, do not understand how anything ‘works’ except the mechanism for claiming expenses, which to be fair is a national pastime, and how to accept lobbyists ‘hospitality’ without getting rumbled.
Your point is an exceedingly valid one. Even IF our politicians understand how our constitution works what is clear is that in the last 11 years, the time given/put aside; the independent /impartial input; and the expertise to translate complex legal issues into understandable language has been severely curtailed. And very significantly, the time available in parliament to discuss the issues (by informed MPs!) in depth and breadth has been stopped. The more important and significant the issue , the less time is given in parliament.
The increased use of the whip and the utter cowardice of MPs to stand for the public good rather than act as nodding dogs for shameless partisanship is appalling.
Democracy and the rule of law (of the demos) are shadows in England
A very long time ago, when I was a law student, Punch published a letter from me about the vital importance to our constitution of the separation of powers. It wasn’t funny then and it isn’t now.
Perhaps he hadn;t quite appreciated the full extent of what he was proposing……
Which would clearly demonstrate how “well” qualified he was to be appointed Lord Chancellor.
I am beginning to wonder if we have a legitimate government anymore.
This is genuinely shocking stuff by Mr. Raab in his new role as the Leader of the Central Leading Group for Comprehensively Deepening Reforms (or something). As an Irish bloke of a certain age, who qualified as a solicitor in England in the last century, this to me feels very un-British. I wonder is Britain itself now starting to feel un-British.
The scary aspect is how little non-lawyers, regardless of how well-educated they are, care about any of this myopic and cynical erosion of a bedrock freedom.
In Ireland, a few years ago, a populist politician introduced a referendum to (essentially) enable the government to influence judicial pay, to some extent. It horrified me.
At the relevant time, I worked in-house in a global engineering company with dozens of very bright colleagues, many with higher degrees in corporate finance, engineering, project, management etc.
Curious, informally, I canvassed my highly-educated and very academically intelligent colleagues’ opinions. Two things became apparent:
1. Nobody gave a flying fig about the referendum. Nobody had bothered to read into it. “Yeah, whatever”, was the majority response.
2. When pushed hard for a view, everyone ultimately was in favour. Primarily on the basis that the judges were making too much money already, and it’d be a good thing to slap it up them, ho ho. So what if they have to cancel the order for the new yacht, ho ho.
My concerns about separation of powers and judicial independence were seen as arcane, far-fetched and wholly irrelevant. It became a source of ribaldry and good-humoured teasing about greedy lawyers sticking up for each other. “Ho ho”, I quipped back, despairingly.
See my blog on that, and on Raab’s latest assault – there is a common thread: https://ayenaw.com/2021/10/18/brexit-britains-slow-drift-into-oligarchism/
I spent a working lifetime as an engineer and my experiences mirror yours exactly. What most highly qualified and capable professionals know or care about anything outside of work and family can usually be written in large capitals on the sharp end of a pin. It is a problem I have found to be far worse among Brits and Americans and must have its origins in whatever our cultures have in common. It’s as if they learn at an early age that all one needs to do is put on the career blinkers and dash for the finishing line. You will be well rewarded and well regarded and if, and when, the blinkers do finally come off it will be too late in the day to have any effect.
When I worked at a refinery in Belgium along with several other Britons in the Seventies the local staff would ask us why there was ‘all this trouble in Northern Ireland’. I was the only one able to provide them with any explanation at all. Not one of my colleagues had a clue and they had all worked in NI as I had. They were mostly science graduates and very good at their work but I never once recall them reading any ‘quality’ newspaper or ever discussing any item of current affairs in anything but a brief and irritated grunt or two. Are we suffering the consequences of over-venerating academic and technical achievements to the exclusion of all other considerations, so that problems in the human world that are not amenable to straightforward ‘answers’ are to be viewed with contempt? I used to think that that indifference to the way the world works was a particular feature of the regulars in the pubs in the part of London (Battersea) where I grew up and still live but I quickly learned otherwise. I had no more chance of hearing a research chemist expressing outrage at a government attack on the rule of law than of hearing it among the lads at the Clock House, The Duke or The Raven.
I think there is a genuine issue that in this country the law enforcement agencies and the courts read the words of legislation, and decide only from the words in front of them (and precedent as appropriate) what it means. Sometimes they decide it means something that contradicts what the politicians introducing the legislation said it would mean, as recorded in Hansard or other formal publications.
Whereas on the Continent they are more inclined to interpret the wording of legislation with regard to the intent of it, as set out in formally recorded material from its time of introduction.
There are pros and cons of both systems. They have been discussed in various places.
One can potentially understand the frustration of a politician when the courts apply their legislation in a manner different from their intention. And I’m somewhat happy if politicians are held to what they said when their legislation is interpreted, because currently they have a temptation, which I suspect they sometimes fall into, of misrepresenting the likely effect of their legislation, to pull the wool over the eyes of the public as to what they are doing.
But the proper way to fix this is move our legal methods in a continental direction, and have a general principle that the wording of legislation should be interpreted by its intent, as on the continent.