Raab’s British Rights

Dominic​ Raab is the eighth lord chancellor and secretary of state for justice since the Conservative Party entered government in 2010. The average tenure has been nineteen months, with a corresponding churn of junior ministers and special advisers. Kenneth Clarke, the first in the post, lasted 28 months, just pipped by Chris Grayling, whose disastrous term was the longest at 32 months. Clarke, inexplicably the favourite Tory of non-Tories, volunteered to cut his department’s budget by 20 per cent in the first wave of austerity in 2010. By 2017 it was down 40 per cent from its 2011 level, and was still about 25 per cent lower in 2019-20. Clarke was also responsible for the Legal Aid, Sentencing and Punishment of Offenders Act, which drastically reduced access to justice for those who can’t afford representation. The Ministry of Justice and the services it runs (courts, legal aid, prisons and probation) have never recovered. Grayling honed his talent for spoiling everything he touched, the privatisation of the probation service being his worst policy. His successor, Michael Gove, at least recognised the depth of the problems he inherited. In 2015 he said that British justice was the gold standard for those who could pay, but everyone else ‘has to put up with a creaking, outdated system’. He gave emphatic support to proposals by an independent commission for improving the quality of publicly funded advocacy, but Theresa May sacked him before he could put them into practice. Liz Truss showed barely any interest in the job. David Lidington came and went without a trace in just seven months. David Gauke, a relative fixture with a term of eighteen months, had to renationalise the probation service, at a cost of about half a billion pounds.

Raab’s immediate predecessor, Robert Buckland, sacked in the reshuffle of 15 September, was one of the last cabinet ministers who voted Remain in the EU referendum, so did well to survive as long as he did. He was a proper criminal barrister, practising for almost twenty years before becoming an MP in 2010. He was aware that austerity had left criminal justice in a deplorable condition, and the pandemic enabled him to screw more money out of the Treasury to keep the courts going and make good some of the damage. He also quietly ditched Tory ambitions to reduce the courts’ powers to carry out judicial review of government decisions. The 2021 Judicial Review and Courts Bill does not alter the fundamentals, though it makes two significant changes. Judges will be able to suspend orders that strike down administrative actions and decisions: at present these orders are always retrospective, meaning the decision is deemed never to have had any effect. And decisions by tribunals will not normally be judicially reviewable: this is tacitly aimed at attempts to overturn asylum appeal decisions. The bill does not exact revenge on the Supreme Court for stopping Boris Johnson withdrawing from the EU without consulting Parliament and then calling his decision to prorogue it unlawful. Buckland is a Conservative who wants to conserve rather than a zealot demanding rapid radical change. The same cannot be said of Dominic Raab.

After the fall of Kabul Johnson expressed his full confidence in Raab as foreign secretary, but replaced him less than a month later. If he failed at the Foreign Office, why give him another cabinet position? And what had Buckland done wrong to get the sack, with no compensatory job? The answers may lie in the strident nationalism and populist-ideological bent of the Johnson government and of Raab himself. In 2009, while working as chief of staff for the then shadow justice secretary, Dominic Grieve, Raab published a book called The Assault on Liberty: What Went Wrong with Rights. It contains reasonable criticisms of New Labour’s policies on crime and terrorism, which are seen as serious infringements of fundamental freedoms, but most of the book is an attack on the European Court of Human Rights and the Human Rights Act. Raab makes some superficially subtle points, about the inconsistency and lack of legal certainty in the Strasbourg case law, for example, but the polemic drowns them out. He claims the European Convention on Human Rights was based on European (boo) socialist (boo) principles. In fact, one of the convention’s lead authors in 1949, David Maxwell Fyfe, who had been a prosecutor at Nuremberg, became Conservative home secretary in 1951. That well-known socialist body, the Catholic Church, was represented on the drafting committee, together with a range of political and civil society groups. The significance attached to family life in Article 8 reflects the Church’s contribution.

Raab believes the Strasbourg and UK courts have stretched the remit of the convention to give people legal rights to things that should properly be policy decisions made by elected governments, such as the requirement for the police to warn people if there is a credible threat to their lives. He says this unfairly diverts police resources because it protects gangsters from the consequences of their own actions. He hasn’t thought this complaint through: without the warning and the protection, gangsters would kill one another more often, a bad thing and wasteful of still more resources. Raab sees New Labour’s policies on crime and the Human Rights Act, passed by Labour in 1998, as inimical to his idea of liberal democracy, which involves minimal interference by the state in citizens’ lives. When involvement is inevitable, it should come through democratic rather than judicial processes. But the principles of human rights provide for a balance to be struck between the actions of the state and the rights and freedoms of individuals. Who better to adjudicate than impartial judges?

With a populist’s instinct for hyperbole, Raab insists there has been a ‘contagion’ of claims in the UK under the Human Rights Act. In 2009, he did not contemplate withdrawal from the European convention, although he argued that British courts should not consider Strasbourg’s decisions as binding (they do not) and called for a retreat to what he regards as core human rights, such as not to be killed, tortured or locked up without due process. He objects to the Strasbourg court’s use of the convention as a ‘living instrument’, which adapts the 1950 text to the needs of the present. A bright spot is his firm belief in the right to trial by jury. He proposed a bill entrenching these limited rights – ‘British rights’ – that Parliament would not be able to amend without a super-majority.

Nothing Raab has said since 2009 suggests he has changed his mind. Peter Gross, a former Court of Appeal judge, is due to deliver a report on reforming the act later this year. It may give Raab the ammunition he needs. If the government wants to be seen to be ‘taking control of our laws’ by weakening, even severing, links with the European convention and its court, Raab is the man for the job.