Photo by Patrick Hertzog
Artillery Row

Runaway judiciary

The Government’s new consultation programme offers hope for a long overdue reform of the Human Rights Act

Persia’s king Artaxerxes had a robust policy for getting a grip on his errant judiciary: whenever he had issues with his judges, he flayed them and turned them into bench covers for their successors.

The same incentive is not available to those seeking to reform our own legal failings. That is not to say, however, that major changes are not needed.

The roots of the problem date back to 1950, with the signature of the European Convention on Human Rights. This stipulated the preservation of a list of basic rights, which had been so flagrantly abused across much of the continent under Nazism: the right not to be put into forced labour, the right not to be tortured, murdered, sentenced without a fair trial and so forth.

In the immediate post-Nuremburg world, this made perfect sense particularly as outposts of fascism still survived and the brutal Convention-busting realities of life behind the Iron Curtain became clearer (these states were excluded from the Council of Europe, the body behind the Convention).

Activist lawyers pushing a policy change through the courts is democratically dangerous

Fast forward several decades and three generations of imaginative lawyers later, and problems started to emerge. Various rights had been increasingly been re-interpreted, re-scripting an intent far removed from the original text, consequently overturning court rulings in controversial ways.

Whatever your views of any individual case, the process of lobbyists and activist lawyers pushing a policy change through the courts (rather than arguing it through any parliament) is democratically dangerous. Look no further for evidence than Tony Blair’s response; recognising the unpopularity of the trend, he masked the process by introducing the Human Rights Act 1998 (HRA 98). This forced British judges to try to anticipate what any appeal to Strasbourg might say, then overrule themselves and predict that judgement instead. Unsurprisingly, this did not fix the problem; it just shifted the blame for unpopular rulings (and in some cases may well have overcorrected).

Many readers will be familiar with the thrust of this saga, but it needs repeating because whenever an effort is made to challenge this broken system, campaigners throw hyperbole onto newspaper front pages about protecting freedoms and democracy (ironically) from any attempt at change.

This is why the latest attempt deserves wide support. Last month, the Government announced a consultation programme to pursue “substantial” reform of the Human Rights Act.

The White Paper in question is worth a read. It identifies a range of problems directly arising from wildly eccentric, politically-driven, postmodern interpretations of what constitutes a “fundamental” right, though it might have added (arguably worse) where such a proclaimed right then limits the rights of another. Examples include areas of environmental policy, deporting fake asylum seekers, indecent communications, deporting criminals on release, re-interpreting duty of care, red tape for law enforcement, operational burdens on service personnel and a range of other examples from housing obligations to social care. The problems transcend any one government department.

No other attempts to quantify costs seem to have been made

Alongside bad rulings and open-ended precedent, there are examples of spurious claims that absorb court time and taxpayer costs. The White Paper does not cover the controversial policy decisions made by public or private sector managers who fear being sued or prosecuted. These account for a range of odd management decisions miring Health and Safety, what we might collectively style “Human Resources wokery”. They also account for the number of superannuated human rights staff littering the public sector. The inherent contradictions and ambiguities straddling our employment law, and intangible torts in general, make Strasbourg the ersatz fuel for political correctness and an indirect primer for Cancel Culture.

How much this all costs the taxpayer remains a mystery: A decade ago I spent three months conducting a major survey, and the available stats pointed to as much as £2.1 billion even back then. It is telling that no other attempts to quantify costs seem to have been made.

The further reality of the Strasbourg system is that case law is often made without taking Common Law traditions into account: precedent is regularly set without a Common Law-trained lawyer in the room, let alone on the bench or arguing either side of the case. Once made, it’s sacrosanct. As the White Paper points out, law being made in court room and then being untouchable by a parliament creates a “democratic deficit” that does need to be addressed.

This nation (unlike many others called to account at Strasbourg) has a rich, ancient and consistent tradition of protecting people from abuse. The biggest credit to our system is that Australia and New Zealand have both somehow avoided despotism without ECHR membership, and Canada and the United States have both gained judicially from standing apart from the Human Rights Court of the OAS (the IACHR) and the Inter-American Commission, despite the latter being headquartered in Washington DC.

But how “substantial” is this proposed reform of the Human Rights Act? Note that what we see is a consultation exercise. One strand of ideas goes much further than another, and no individual item is as yet even a formal policy offer. Nevertheless, the intent is clear: “We would like to establish a formulation that emphasises the primacy of domestic precedent, while setting out a broader range of case law including, but not confined to, the Strasbourg case law that UK courts may consider, if they so choose.” That would mean, if delivered, putting UK judges back in control.

What happens when the Strasbourg courts and UK courts do collide?

One proposal seeks to identify a mechanism discouraging public authorities from over-anticipating Strasbourg. There’s a belated recognition of a potential role for the largely-neglected Committee of Ministers of the Council of Europe in brokering a way through conflicting UK and Strasbourg rulings. There is also a requirement for returning to increased judicial consideration of Parliament’s own policy intent.

On the crunch matter of the cognitive dissonance between the two legal systems, the two options are 1) to remove UK courts’ obligation to follow Strasbourg precedent rather than a new UK Bill of Rights (though they can still “have regard” to Strasbourg); or 2) for the UK Supreme Court to consider equally all case law, but when looking at the Convention to do so considering its original “first generation” Strasbourg principles.

There are grounds for some optimism here, though it has to be guarded. The White Paper shows that deep thinkers within Government have been wrestling with the issues. But then we knew that already: the conundrum has been under consideration since the formation of a Conservative policy group and an independent commission in the days of the Cameron-Clegg Coalition. The few more ambitious proposals there were watered down and then quietly poured away.

The wording here sounds more robust, but there’s one loose end that may yet hamstring reform efforts. What happens when the Strasbourg courts and UK courts do collide? Appeals by definition will still go to Strasbourg; cases will still be lost (by definition, more so than ever); and then will follow political fights with acclimatised elites.

The White Paper does include a striking option, though still vague (partly because of some ambiguity over how it might sit with the Bill of Rights 1689). It moots the possibility of Parliament automatically being required to debate whenever UK courts have been overruled by Strasbourg. The wording is currently weak; the nature of the motion unclear. It might trigger a formal authorisation for British judges to ignore the latter’s court, or it might just formally mandate the Government to try to find some political half-fix (which it might not even have to deliver). If it does end up as a mechanism for Parliament to consciously reject the implications of the Strasbourg vote and to instruct judges to stick with existing UK law, then perhaps to some extent the circle has been squared.

Other countries have the unvexed option of just ignoring Strasbourg

Other countries of course have the unvexed option of just ignoring Strasbourg altogether: the fact that our lawmakers are looking at this complex formal workaround is in itself proof of the security of our human rights protections. The watertight option for the UK would be to bin HRA 98 and just leave the jurisdiction of the Strasbourg Court, establish a new UK bill of Rights, then rejoin with UK-specific protocols introducing safeguards at source. Indeed, that is the logical and surest route. But that solution frightens many Establishment horses, mostly on the basis that countries with genuine human rights issues might then pay less attention to judgments against them. It is a weak argument, when you consider Russia is already claimed to be ignoring nine tenths of adverse rulings and Turkey two thirds.

The White Paper suggests an uncertain and unstable alternative, which is the best option short of the above. It comes at the cost of constant political battles over agendas incessantly pushed by lawfare warriors. Standing up to bad Strasbourg precedent becomes a matter of political nerve a confrontation that the Cameron Government ran away from and the Blair Government simply tried to pretend didn’t exist, so the precedent is not great.

It may even be that reforms do not get that far: it is as much down to readers now to submit informed recommendations to Government (you can do so here) and not to leave it all to the usual suspects like Sinn Fein.

Even pushing the best that this route has to offer, failing to make that unambiguous break with the Strasbourg Court runs the risk at best of only occasional hard-pushed victories, at worst of constant affliction. We can hope. As policy direction goes, it may yet end up like the admonition of Thulsa Doom as he judged Conan the Barbarian to be nailed to the oak: “Contemplate this on the Tree of Doom.”

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover