Category: Ministry of Justice

Lord Chancellor, there is already a mechanism for the law to be changed: it is called Parliament

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:

 

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When the justice system is in crisis, Dominic Raab should not be using finite ministerial time and scarce departmental resources to attack the Human Rights Act

17th October 2021

Sunday again, and another Sunday press piece about how the new justice secretary and lord chancellor Dominic Raab will do something-or-other against the Human Rights Act.

The criminal justice system in England and Wales is in crisis.

The ‘crisis’ word is not used easily: but we do have a serious situation the outcome of which is not certain.

Trials are now not taking place for years after the alleged offences; there are not enough courts or enough lawyers for hearings to take place; victims, witnesses and defendants (some of whom will, of course, be innocent) have the stress of delays and uncertainty as an everyday factor in their lives.

One would think sorting out this predicament would be the priority – perhaps the absolute priority – for the incoming justice secretary and lord chancellor.

On the face of it he is in the strong position.

He is deputy prime minister, and so he has a strong position in cabinet and is well-placed to take on the treasury for more funding.

He is a qualified lawyer with actual experience of practice, and so has the potential insight of knowing how law works in practice rather than just as a thing in the news.

He could – as this blog averred recently – become one of the great modern lord chancellors.

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The ministry of justice is not a big department in Whitehall terms, and it is has little purchase on the parliamentary timetable.

A bill to ‘overhaul’ the Human Rights Act will be instead of ministry of justice legislation on more practical (and pressing) concerns.

Civil servants and ministers working on Human Rights Act ‘overhaul’ are necessarily doing that instead of something more useful.

Resources being used for Human Rights Act ‘overhaul’ are also necessarily diverted from something more useful.

And not since the days of Mackay, Irvine, Falconer and Clarke have we had a lord chancellor in such a strong political position within cabinet and with the prime minister.

Think of the good that this deputy prime minister could do for the justice system as a whole.

Think of it.

And now remember that this lord chancellor’s priority is contriving a fight with ‘Europe’ in respect of a symbolic assault on the Human Rights Act.

The sheer triviality of these relative priorities is enough to make sensible people weep.

*****

Please help this daily law and policy blog continue.

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

Each post takes time, effort, and opportunity cost.

Suggested donation of £1 upwards for each useful post, or of £5 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

*****

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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.