Are government plans way out of court?

Raab’s plans seen as a threat to an independent judiciary

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f Justice Secretary Dominic Raab gets his way, legislation will be introduced to “correct” judgements made in human rights cases that go against the government. The Deputy Prime Minister had previously revealed plans to “overhaul” the Human Rights Act to reduce the influence of the European Court of Human Rights (ECHR). Then in a later interview with the Sunday Telegraph he said he was devising a mechanism to allow ministers to introduce ad hoc legislation to “correct” court judgement, whether passed by the ECHR in Strasbourg or even by UK judges. He regards this tactic as creating new law through “judicial legislation” rather than decisions made by elected politicians. He said in the interview, “Where there have been judgments that – albeit properly and duly delivered by the courts – we think are wrong, the right thing is for parliament to legislate to correct them.” Raab said the government wanted the Supreme Court to have the last word on interpreting the laws of the land, not the Strasbourg court, but added, “We also want to protect and preserve the prerogatives of parliament from being whittled away by judicial legislation, abroad – or indeed at home.” In other words, no court decision will be final.

The concept of allowing “ministers to introduce ad hoc legislation” has sounded alarm bells for many, with the new plans less than universally welcomed. The former head of the government’s legal service, Jonathan Jones, claimed the Raab proposals were “muddled”, while a professor of public law at Cambridge University went much further, saying they were “deeply troubling” and threatened to undermine the basic standards of good governance. Mr Jones, who quit as the government’s top lawyer in protest at Boris Johnson’s plan to breach international law in the row over the post-Brexit Irish border, said there was “lots of muddle” in Raab’s plans, as he was trying to use a new ministerial mechanism for “correcting” court judgements without obtaining MPs’ approval, meaning a reduced role for parliament. And Cambridge professor of public law, Mark Elliot, said that allowing a minister to overrule a decision of the judiciary simply because he did not agree with it would “cut across principles that are fundamental components of the rule of law.” He said that any such move would be “profoundly problematic” and “deeply troubling” and added, “It would reassign a basic judicial role – interpreting the law – to ministers.” Additionally, human rights lawyer Jessica Simor QC, claimed the justice secretary was peddling a “false narrative” anyway in stating that foreign judges were ruling over the UK court system, when the Human Rights Act was introduced specifically to ensure that British people were able to have their rights upheld in a domestic court rather than having to go to the ECHR. This is one of those areas that confuses the public, with a large proportion of “don’t knows” in our survey questions. One thing is clear: the public understand the principle of judicial independence and don’t want that tampered with.