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How New Labour created the Rwanda stranglehold Parliamentary sovereignty has been tampered with

The 'Blair-era legal framework' (Scott Barbour/Getty Images)

The 'Blair-era legal framework' (Scott Barbour/Getty Images)


January 18, 2024   7 mins

Amid the tension surrounding the Government’s Rwanda policy, one striking cause has been largely ignored. Read through yesterday’s coverage and you could almost miss it — the recognition, in a joint resignation letter fired off by former Conservative Deputy Chairmen Lee Anderson and Brendan Clarke-Smith, that our “Blair-era legal framework” is unfit for purpose.

New Labour has long been a convenient scapegoat for Conservatives of a particular persuasion. But this time, the accusations may have merit. The backlash that followed last year’s Supreme Court ruling — which found the Rwanda policy to be unlawful — is a direct product of New Labour and Lord Derry Irvine’s rights-based judicial reforms. Those reforms, firstly, ensured all policy and legislation-making centred around a culture of rights-compatibility. This was to be given priority over debates regarding the merits and necessity of an elected government’s policy preferences and assessment of the public interest. Secondly, it encouraged the perception of the judiciary as being unchallengeable and hierarchically superior to other branches of the state. The result, as we’re now seeing, is the constraint of an elected government that commands a majority in Parliament.

For New Labour, the aim was to ensure that domestic policy and legislation was subject to, and heavily shaped by, the European Convention (ECHR) rights found in the Human Rights Act 1998 (HRA), regardless of whether the domestic public interest or common good, according to a democratically elected majority government, required otherwise. As such, governments of all stripes would be forced into designing and arguing for policy that sits within the HRA’s framework and adhered to decisions made by the European Court of Human Rights (ECtHR). Other pertinent questions about the need, validity, strengths, weaknesses and democratic support for these proposed measures would become secondary.

Lord Irvine was clear-eyed about the types of rights-based reforms he wanted to introduce. He unequivocally claimed that New Labour’s HRA sought to mould not only the content of law in a range of areas, but also the law-making process. As such, it was New Labour’s specific intention to ensure government policy and legislation was framed around individual rights. To this end, the requirement for ministers to make statements of compatibility when introducing a Bill into Parliament was vital; the “responsible minister” would have to justify their decision in the “full glare of parliamentary and public opinion”. Strikingly, “Sovereignty”, Lord Irvine wrote, “will in future have to be exercised within an environment highly sensitive to fundamental rights”.

Moreover, because the HRA ensures executive and public bodies carry out their work under the umbrella of rights compatibility, Lord Irvine claimed such bodies would be subject to “considerably more rigorous scrutiny” than before — and he conceded the “special arena of human rights” would entail high degrees of judicial intervention.

While Lord Irvine, and New Labour, maintained that parliamentary sovereignty would be preserved, and Parliament could continue to legislate as it wished, the intention was to reposition the terrain for legislating towards matters of compatibility and away from concerns about public interest. If Parliament sought to legislate against the HRA grain, the question would not be of sovereignty or public interest but of rights-compatibility. Further, the duty on domestic courts to read legislation in a HRA-compatible way has led to a wide range of British government policies being reduced to such debates. The results, as we have seen, include well-documented cases of IRA members claiming to suffer a breach of the right to life, and the blocked deportation of suspected terrorists. Even government policies concerning public ownership and late-night flights from London Heathrow airport have been subject to questions of compatibility.

Of course, while these types of cases can and often have been decided in favour of the Government, the reduction of substantive policy proposals to discussions of ECHR-compatibility, and the resulting delays to their implementation, are debilitating for domestic legislative or public interest programmes. Adhering to basic minimums of rights is important. But to confine the legislative and policy-making process so that it only or disproportionately considers HRA compatibility distorts and significantly harms domestic deliberations about proposed measures. Such a bias also reduces the role of the unique customs and traditions of the country in informing policy programmes, and relegates the view of legitimate domestic actors, such as trade unions, who may have a role in influencing policy or legislation. Designing and implementing domestic measures requires some degree of political and legislative freedom, relatively free from compatibility measures that are premised on decisions made by the supranational voices of the ECtHR.

To make matters even more tiresome for any current or future government, New Labour’s HRA created the perception that the judiciary, and their judgments, were hierarchically superior to the elected majority government in Parliament. In other words, a false impression was created that framed Parliament, and the majority government within, as being unable to question or legislate against judicial decisions. Historically, the British constitution is no stranger to judicial checks on potential overreaches of power. But it is not through enforced judgments that Parliament complies with judicial decisions. Instead, it has always been through sovereign self-regulation, conventions of restraint and respect, and, where this fails, through parliamentary scrutiny and, ultimately, electoral assessment. Despite this, New Labour encouraged an Americanised feeling of judicial supremacy by, first, reframing the role of judges and, secondly, allowing them to enter more substantive discussions about the merits of any given policy or legislative measure.

Lord Irvine confidently asserted that the HRA’s reforms ushered in a new framework and prominence for judicial authority. He understood that the British system was not like that of the United States, with a written constitution, but he believed that the judiciary should be tasked with protecting both substantive rights and the content of those rights. Here, he argued that the success of the US constitution in achieving this was a result of the power given to the courts. Strikingly, in comments that would petrify Lord Chancellors of the Labour Party’s past, Lord Irvine also argued that characteristics of the US Supreme Court would underpin the new rights-protection model in the UK. By moving away from the Diceyean common law model, “the new legislation [HRA 1998] will allow the judges to fulfil a stronger constitutional role in a wholly constitutional way”. The HRA, he argued, gave the courts the “constitutional warrant” needed to uphold rights.

Then, after recasting the British judiciary in the same light as the US Supreme Court, Lord Irvine explained that the introduction of New Labour’s rights-based reforms would kickstart a new process of justice based on the promotion of positive rights. As such, he believed the mechanics of the HRA changed the constitution to one in which citizens asserted a positive entitlement that was expressed in clear and principled terms. This meant that British judges, for the first time, were able to make their own distinctive contribution to the protection of rights. The judiciary would now be armed with a “catalogue of new rights” and “new tools” to uphold freedom. Despite New Labour arguing these reforms maintained the position of Parliament as the ultimate arbiter, Lord Irvine specifically claimed there would be great pressure to concede ground to any decision that the court has made. This would especially be the case if a “section 4(2) declaration of incompatibility” — in which legislative provisions went against the grain and values of the HRA — was made. For those unsure what this might entail, he explained:

“The issue of a declaration of incompatibility is very likely to prompt the amendment of defective legislation. Consequently, while British courts will not possess the power to strike down legislation which is incompatible with human rights, their power to issue a declaration of incompatibility is substantial, given that, in pragmatic terms, it very probably will lead to the amendment of defective legislation. In this practical sense, the Human Rights Act does introduce a limited form of constitutional review.”

Commentators broadly agree on the potency of such a declaration, despite Parliament, in a technical sense, having the ability to ignore it. Indeed, the political pressure created by a “Supreme” Court ruling against a government tends to be so enormous that, in practical terms, the court, not Parliament or the government within, is viewed as supreme. In effect, such a measure is tantamount to ordering the Government and Parliament itself to halt or change direction — something which, prior to 1998, was constitutionally improper.

Moreover, when ensuring the legislation or policy in question was compatible with the HRA, Lord Irvine claimed judges would also be able to conduct a more substantive review of human rights and policy. He argued that the domestic courts would be able to examine whether it was necessary to limit a right, and whether a proposed limitation was appropriate. Therefore a moral approach to judicial decision-making was created. The courts would now have to be satisfied that any interference with a protected right was justified in the public interest of a free democratic society. The result, Lord Irvine explained, would be judicial decisions based on the morality of government policy and legislation — not simply its compliance with the bare letter of the law.

Finally, although seemingly cosmetic, New Labour’s decision to disband the Appellate Committee of the House of Lords and create a new, relocated Supreme Court — via the Constitutional Reform Act 2005 — lent further weight to its aim of fostering feelings of judicial supremacy. Instead of adhering to the unique commixture of powers in the British constitution, the Department of Constitutional Affairs explained the intention was to redraw the relationship between the judiciary and other branches of the state — in addition to enhancing judicial independence. Overall, then, an image starts to emerge of New Labour and Lord Irvine’s responsibility for those in Britain who have spent the past two decades appealing to the paramountcy of the HRA and finality of judicial decisions. This can be clearly seen in the responses to the Rwanda policy from civil society, commentators in the media, and politicians.

Following the Supreme Court judgment, for example, third-sector organisations unequivocally called for the Government to abandon and draw a line under the measure. Others have also criticised the Government’s response  for “disapplying” aspects of the HRA and “disabling the courts”, while reporters have framed the Government’s response as one which “brushes the historic role of our country’s courts aside”. Similarly, among politicians, legislating against the Supreme Court has been described as “an affront to democracy”, with MPs expressing concern about “the possibility that, by effectively reversing through statute a Supreme Court judgment on the facts, the Bill could undermine the constitutional role of the judiciary”.

Of course, these responses do not form a complete picture — but they do provide a snapshot of the enthusiasm for judicial supremacy fostered by New Labour. The result, as the Rwanda policy has demonstrated, is a rights-based framework that can significantly obstruct an elected government’s policy or legislative agenda. While New Labour and Lord Irvine may feel like history, we are still stuck in the stranglehold of their reforms.

***

A version of this article was published on the UK Constitution Law Association website.


Sanjit Nagi is a PhD researcher at SOAS University of London


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Billy Bob
Billy Bob
8 months ago

The Tories have had 14 years to disband these rules in favour of what came before, and they chose not to. Therefore they only have themselves to blame.
Like or loathe (I can’t stand him) Blair he was extremely effective during his time in office passing legislation to make his preferred choice of governance a reality

Andrew Buckley
Andrew Buckley
8 months ago
Reply to  Billy Bob

Bit difficult to back track against a body that has supremacy over Parliament in so many ways. Stunning example of fixing a big state agenda into the system that is pretty near impossible to remove democratically.
For me one clear example was the madness of the Supreme Court saying Boris’s attempt to prorogue Parliament was unlawful. Parliament had full power to say yes or no on this and then abrogated responsibility to a non-elected body.
There has been a real erosion of Democracy in the UK (and by the look of it elsewhere) in the past 20/30 years as more and more power devolves to local and international unelected bodies and the supremacy of lawyers over so much of our lives.
You can have democracy as long as it is the right sort of democracy!!!!

Hugh Bryant
Hugh Bryant
8 months ago
Reply to  Andrew Buckley

TBF the administrative state’s coup d’etat by stealth began under Major with the signing of the Maastricht Treaty. Oxbridge Tories bear as much responsibility for the destruction of British democracy as the Blairites.

Walter Marvell
Walter Marvell
8 months ago
Reply to  Hugh Bryant

Agreed. This is a consequence of that constitutional revolution – us becoming an EU Statelet. Blair and the Left entrenched the New Order (human rights/NMI/Supreme Courts) at the behest of the EU, claiming publicly this was a modernizing agenda. Together they created the 30 year Progressive State. And as AB rightly says, this anti democratic Machine has become so deeply entrenched within the State that it now rejects any and all anti progressive policies like a foreign virus.

Billy Bob
Billy Bob
8 months ago
Reply to  Andrew Buckley

The Supreme Court could be abolished tomorrow if a majority of Parliament approves it, and any law can be rescinded as long as you can carry the house with you. The beauty of the British system is it’s almost total flexibility

Andrew Buckley
Andrew Buckley
8 months ago
Reply to  Billy Bob

Whilst I agree with you in principal I can imagine that someone (or body) would then pass the removal of the Supreme Court to the Supreme Court for a review of the legitimacy of the new act!

George Venning
George Venning
8 months ago
Reply to  Andrew Buckley

Well yes, potentially, but it couldn’t deem its own abolition unlawful on spurious grounds. If parliament wanted to abolish the Supremes, they might object that it left the HRA unenforceable, but, if Parliament repealed the HRA as well or tidied up the loose ends in some other way then it couldn’t object.
A major constitutional reform like that might be difficult to pass if it wasn’t in the manifesto but, if it’s in the manifesto and you have a functional parliamenary majority, you can do pretty much what you like.
And before you say “well what about Brexit then?” the answer was that, whilst there was a majority for Brexit, there wasn’t a majority for any given type of Brexit.
You may also recall that Mail’s “Enemies of the People” headline arose because the Supreme court blocked the Government from ramming its own preferred form of Brexit through WITHOUT THE CONSENT OF PARLIAMENT. The Supreme Court was therefore upholding Parliamentary sovereignty and the problem was that Parliament was, itself divided.

Billy Bob
Billy Bob
8 months ago
Reply to  George Venning

The biggest thing also holding up Brexit was that while a majority of the public wanted to leave, a majority of MPs wanted to Remain and tried to stifle it at every turn

V T C
V T C
8 months ago
Reply to  Billy Bob

The point of the article is that the stage was intentionally set to make any kind of repeal, even if possible, very unlikely to happen.

Billy Bob
Billy Bob
8 months ago
Reply to  V T C

It no doubt made it politically awkward to do so, but if the Tories truly wanted it gone they could have scrapped it through acts of parliament. The fact the haven’t bothered is entirely of them and it’s now coming back to bite them

Al Hicks
Al Hicks
8 months ago
Reply to  Billy Bob

Bring back the Law Lords.

0 0
0 0
8 months ago
Reply to  Andrew Buckley

Democracy requires much more than elected government. As we were taught in school.

Brian Villanueva
Brian Villanueva
8 months ago
Reply to  Andrew Buckley

“abrogated responsibility to a non-elected body.”
That’s the key point. Both in the UK and the US, the elected representatives are refusing to represent the interests of those who elected them against unelected and largely unaccountable judges.
The fact that this is happening on both sides of the pond in parallel suggests something has gone deeply wrong with electoral democracy in the Anglo world. Our elected officials simply no longer feel a duty to those who elected them. Yet can you blame them for ignoring us? Passing legislation is hard (particularly in a parliamentary system) and requires taking risks. Easier to just say “well, we can’t do anything about that since the courts have spoken” and go to the next cocktail party or private-jet junket.

Walter Marvell
Walter Marvell
8 months ago
Reply to  Andrew Buckley

Lord Carlisle today. Any parliamentary resistance to our Progressive Order..oops I mean our sacred (30 year) ‘Laws’…is ‘totalitarian’. The sheer arrogance!! We are tasting the Soviet experience now; they have toppled Prime Ministers and bullying Brex Ministers sans problemo, nearly secured a coup to overturn it too…so why bother what the powerless oikish people beyond London might think of such chilling remarks!. Remember these days. When the cynical Starmerite Party of the Blob siezes power, full Order will be restored …and off will go the lights.
.

Alex Carnegie
Alex Carnegie
8 months ago
Reply to  Walter Marvell

One should not underestimate the self righteousness of the lawyers as they stage their creeping coup. I was recently arguing with a professor of international law about these issues – and assuming my legal ignorance would ensure defeat – when he asserted that seceding from the ECHR would represent the “collapse of the rule of law”. When I asked how we had managed to have the rule of law for three centuries before the ECHR was invented, he had no answer. Like most of us, I suspect lawyers live in a self serving and self flattering bubble and really don’t get – or often even encounter – the arguments against what they have done.

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  Alex Carnegie

Let’s kill all the lawyers”*

(*WS. Henry VI, Part 2, Act IV, Scene2.)

R E P
R E P
8 months ago
Reply to  Billy Bob

The Conservatives are the Stupid Party…they also voted for the Equalities Act which creates two types of citizen when legislation is being considered. straight white men and everyone else – ie. those with protected characteristics.

Christopher Barclay
Christopher Barclay
8 months ago

Interesting how this ‘rights-based’ approach to law does not protect the right to free speech or the right of sub-postmasters to a fair trial.

Walter Marvell
Walter Marvell
8 months ago

Nor of course the right of Parliament and the nation state to protect our borders from people traffickers and their many leftist allies in our immigration system The list is long and shameful. Bring back common law. Remove this twisted failed rights based system suffocating all our old freedoms and dynamism.

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  Walter Marvell

The “great unwashed “ sometimes referred to as the British People have brought this on themselves, and thus have only their good selves to blame.
They elect the Blair creature in the first place. Then dither with Clegg – Cameron, and finally vote for the all too obvious bogus New Tories of today.
Additionally many become hysterical over Green Cr*p*, whist the reaction to COVID can only be described as appalling. The only glimmer of hope was in the wafer thin Brexit vote.
Fortunately years well deserved misery and discontent lie ahead.

(*The only good thing Cameron has ever said.)

Pedro the Exile
Pedro the Exile
8 months ago

Fortunately?

Charles Stanhope
Charles Stanhope
8 months ago

“Pain is a great teacher”- Aristotle.

Alex Carnegie
Alex Carnegie
8 months ago

Cr*p* = Crepe? Objecting to nouvelle cuisine?

Charles Stanhope
Charles Stanhope
8 months ago
Reply to  Alex Carnegie

Crêpe?, But well spotted!

Ethniciodo Rodenydo
Ethniciodo Rodenydo
8 months ago

The ECHR is infinitely malleable. It means whatever the person in charge of interpreting it says it means.
The intention is and was to allow unelected judges to impose their views over those of the elected government.
And look how effective the Courts were in upholding our rights in the eth of the Covid lockdown
It would be interesting to see what would happen if we suddenly had an influx of right wing Judges in the Supreme Court

Richard Hopkins
Richard Hopkins
8 months ago

Ironically, even when the legal system fails spectacularly in the “most widespread miscarriage of justice in British legal history,” the net result seems to be just another bonanza for the legal industry. Of the £58 million compensation awarded to the post masters, £46 million went in their legal fees. What will be the final figure of legal fees generated by this scandal, including the cost of the inevitable official inquiry? Nice work, if you can get it.

Walter Marvell
Walter Marvell
8 months ago

Excellent. Even many Unherders seem blind to this EU/Blair joint revolution in our law making and its profoundly anti democratic and disastrous socio economic consequences. Add in the other linked EU driven ‘modernising’ reforms to our governance – the attack on the Executive power via the creation of a permanent regulatory State Blob (NMIs) and hey presto you have a recipe for State failure, popular discontent as well as economic stagnation and decline. Nice one Maastricht. Nice one Tony.

Dylan Blackhurst
Dylan Blackhurst
8 months ago

What a sh#tshow!

Add a left leaning civil service that appears to be at odds with the government and it is amazing that anything is getting done.

But fear not! A human rights lawyer with the personality of a blank piece of A4 waits patiently to take control.

Harry Child
Harry Child
8 months ago

If he follows Blair’s example of creating over 127,500 pieces of new legislation, he will not only micro manage our lives but he will be a bigger disaster than the last Labour Government.

Rocky Martiano
Rocky Martiano
8 months ago
Reply to  Harry Child

He has promised a state-supervised childrens’ tooth brushing programme. I doubt if even Kim Jong Un has gone that far.

Alphonse Pfarti
Alphonse Pfarti
8 months ago
Reply to  Rocky Martiano

I doubt that North Koreans even have access to toothbrushes.

Chris Whybrow
Chris Whybrow
8 months ago

The Rwanda scheme is just a stupid idea anyway. Even if it goes through, they’ll end up deporting maybe five people every few months. Probably less than the number of refugees heading here who were originally displaced by the Rwandan government.

Walter Marvell
Walter Marvell
8 months ago
Reply to  Chris Whybrow

The reason the odd Rwanda plan exists has been laid out before you here. We cannot control our borders. Nor can Europe. The Human Rights Junta and its elite progressive allies evidently forbid even democratically elected Governments – and the will of 9 out of 10 Brits – to pass effective deterrent laws against an overtly criminal enterprise. Rwanda will of course fail. But it has already served its purpose. It has signalled to the vast majority of Britons and Europeans that this New Order and the similar outmoded International Laws on Asylum and Refugees pose an existential risk to our societies. 2024 will witness the payback in every election in the West. The defeat of the Rwanda plan by HR law has shone an unforgiving light across all Europe on the way we are all trapped. All can see that the progressives open border multiculturalism will not yield to reason, nor democratic mandate. Finally – way too late – its defeat should galvanise the long needed reforms on a global level led by new Rightists in Europe and the US. So all the torture of the Jenricks and Tories may ultimately turn out to be a phyrric victory… if we are lucky.

Rocky Martiano
Rocky Martiano
8 months ago
Reply to  Walter Marvell

‘2024 will witness the payback in every election in the West’….except in the UK, where no electable party committed to such payback exists.

R Wright
R Wright
8 months ago

You’d have thought the Tories might have deactivated these landmines, blocked the implementation of the Equality/Race Grifting Act and reversed Brown’s destruction of the law of equity and trusts. But no, it turns out they never wanted to rule.

Walter Marvell
Walter Marvell
8 months ago
Reply to  R Wright

Thats the Big Question. Too Progressive and disinterested? Or too frit and weak to force through the massive reforms?

Steven Farrall
Steven Farrall
8 months ago
Reply to  Walter Marvell

Both

UnHerd Reader
UnHerd Reader
8 months ago

I would much rather have the Supreme Court, Human Rights law and the spectre of the Last Labour Government™ than Lee Anderson or anyone close to him.
The tories want an elective dictatorship – sorry lads but this is what liberal democracy looks like.

Peter B
Peter B
8 months ago
Reply to  UnHerd Reader

The article seems to be arguing that we should consider going back to where we were before 1997.
The critical point seems to be whether we have the balance right between the courts/judges and Parliament/politicians. As a layman, I have the impression that judges are effectively making more laws now and there has been considerable “mission creep” here.
According to your logic, that too must have been an “elective dictatorship”. Really ?
The author quite rightly points out that there is no more reason to trust judges than politicians. The fact that the public currently seem to believe that judges are “better” is probably because they haven’t seen enough of judges work to realise these people are not morally superior to anyone else. And, indeed, frequently fallible. There are enough miscarriage of justice cases from the 1970s and 1980s to make that clear.
Reversing your point, isn’t there a greater danger of a “non-elective dictatorship” if we put too much power in the hands of people we cannot remove (House of Lords, judges, foreign courts) ?

George Venning
George Venning
8 months ago
Reply to  Peter B

The term “elective dictatorship” was popularised by Lord Hailsham (variously a conservative MP and peer) to describe the Labour Government of Harold Wilson. He was criticising the excess power of the executive rather than parliament.
The HRA is designed to allow the judiciary to act as a more effective counterbalance to the both parliament and executive. The three branches of government are all supposed to balance one another.
If the government of the day wishes to amend the rights enshrined in the HRA, it is at liberty to do so. But it would be an odd thing for a Government to find itself legislating to reduce the rights of its citizens. Not least because British Governments of the recent (postwar) period did no much to create and promote the idea of human rights internationally.
I also find it striking that Conservative Governments should so often find themselves chafing against constitutional restraints at both the UK and EU levels and more stiking still that the nature of the complaint is so often that the restrainst make it difficult for them to be as cruel as they would like.

David Harris
David Harris
8 months ago
Reply to  UnHerd Reader

Oh dear.

David Harris
David Harris
8 months ago

“the enthusiasm for judicial supremacy fostered by New Labour.”

Just another takeover by the Lefts long march through the Institutions…

Jeremy Bray
Jeremy Bray
8 months ago

You have to say that Blair and his team profoundly affected the structure of the State in a way as revolutionary as Margaret Thatcher and her team. Unfortunately, the period when the Conservative Party has been in office firstly hobbled by Lib-Dem participation and subsequently bogged down by the single radical measure of Brexit there has been nothing done to rollback the pernicious effects of the last Blarite “reforms”. Unfortunately the party and state apparatus has been effectively captured by the heirs of Blair and predominantly represents the do nothing wets strand of conservativism.

George Venning
George Venning
8 months ago
Reply to  Jeremy Bray

The Blair Government changed the structure of the state (a bit). But change isn’t necessarily for the worse and perfectly civilised countries manage to get along with much weirder constitutional arrangements than ours (Japan has effectively had only a single electable political party for 50 years!)
If you want to complain about constitutional arrangements it would be helpful to know what it is you think that Parliament has been prevented from doing by the present arrangements. And if your answer is Rwanda (a scheme that is expensive, ineffective, which represents a breach of international treaty obligations and isn’t even all that popular) then I don’t think you’ve made a very good case.

Charles Stanhope
Charles Stanhope
8 months ago

‘HAIL BLAIR……..IMPERATOR!’

R Wright
R Wright
8 months ago

“We who are about to die by red tape salute you”

George Venning
George Venning
8 months ago

Far be it from me to miss an opportunity to trash Blair, but this isn’t one.
For a fluent communicator with handsome majorities across three parliaments, Blair’s lasting legacy is pretty shallow but his commitment to human rights (at least in the domestic sphere) is one of the few ways in which he made the country durably better.
Does the HRA infringe parliamentary sovereignty? Of course it does, it’s a constitutional reform that adjusts the way the government does things – like the Fixed Term Parliaments Act.
But it’s an ordinary law like any other – you could repeal it by act of parliament – you don’t need a supermajority or a referendum or any of the other safeguards that other countries build around their constitutional processes. The only reason it’s hard to repeal is because reducing people’s human rights isn’t a great look.
So pud-knockers like Lee Anderson can rail and gnash their teeth against the infringement of parliamentary sovereignty by out of touch judges. But what he’s really doing is complaining about a constitutional safeguard designed to prevent parliament from making crappy, vicious, laws that breach our international treaty obligations (another sensible and proportionate check on absolute parliamentary sovereignty which we could nonetheless breach if we really wanted to but don’t). The legislation is there to save parliament from making an ass of itself.
What I doubt Lord Irvine foresaw was the creation of a new class of political grifter who would build their careers on half-witted complaints about perfectly normal aspects of a constitutional framework.
To invoke the spectre of judicial tyranny because the Supremes won’t permit the Government to spend hundred of millions of pounds shipping a miniscule number of traumatised asylum seekers to an impoverished dictatorship on the other side of the world, as a means of pretending to the public that the government gives two hoots about immigration is to render oneself irretrievably ridiculous.

Steven Farrall
Steven Farrall
8 months ago
Reply to  George Venning

“…but his commitment to human rights (at least in the domestic sphere) is one of the few ways in which he made the country durably better….” Evidentially, not.

George Venning
George Venning
8 months ago
Reply to  Steven Farrall

Do go on…
It really is very strange to me to hear British subjects complain that we have, in effect, too many rights.
Can you imagine this complaint in an American accent? Or in the mouths of anyone who lives in a country with any experience of genuine tyranny in, say, the past 100 years? (That last category would, of course, include almost the whole of continental Europe with the possible exception of Sweden and Switzerland).

Mrs R
Mrs R
8 months ago
Reply to  George Venning

Didn’t Blair’s wife immediately open Matrix once the HRA was passed?
‘The same year Mr Blair’s government passed The Human Rights Act. Matrix was the first specialist human rights chambers to be set up following the introduction of the new law and was launched amid controversy’

George Venning
George Venning
8 months ago
Reply to  Mrs R

She did. She was, after all, a human rights barrister.
I take your point but, I don’t think it amounts to an actual criticism of the reform itself unless you want to argue that Tony Blair undertook a major constitutional reform in order to give his wife more work to do. Which would be an amusing idea in a Bernard Manning sort of way. Isn’t it more likely that their shared interest in human rights, which started well before he was anywhere near power, shaped Blair’s actions as PM?

0 0
0 0
8 months ago

Reforms which have strengthened British democracy, contrary to what’s asserted by those who’d let a majority in Parliament run roughshod over all and sundry. (When it’s their majority.) We see the benefits today in standards which willful schemers find it hard to meet, so they are reduced to denigrating the rule of law or mocking it by trying to pass laws overruling due judicial findings. Neither of which excess is supported by the British public, with whim those New Labour reforms have understandably struck a chord.

Mark Phillips
Mark Phillips
8 months ago

Lord, that picture reeks of Alan B’Stard. The sneer is pure Alan.

Daniel Lee
Daniel Lee
8 months ago

The Left discovered some time ago that large majorities of ordinary people treated their specious nostrums with laughter and mockery, and have since been engaged in cloaking them in who-could-disagree notions like environmentalism and social justice while turning to bureaucracy and the courts to enact the real meat of their agenda.

Steven Farrall
Steven Farrall
8 months ago

Indeed. But the $64K question is ‘how do we undo all this nonsense and re-establish the primacy of the Common Law and Parliament’?
(Comment. Pretty all current ills can be laid at Bloody Blair’s door.)

Pedro the Exile
Pedro the Exile
8 months ago

ensured all policy and legislation-making centred around a culture of rights-compatibility
and never ever any corresponding obligations-no wonder the UK is going down the pan at an alarming rate.

Bryan Dale
Bryan Dale
8 months ago

After 14 years in power, the Conservatives haven’t changed the law, so now they own it.

j watson
j watson
8 months ago

Oh good grief. The Rights had 14 years. Just change it if you didn’t like it.
Yet again a scramble to blame anyone but themselves. Govern for goodness sake. You’ve not been in opposition.

William Brand
William Brand
8 months ago

Rwanda is the 1st time That the prime minister and the courts Are disagreeing. It will all come down to the behavior of the police and the army. Which will the constable or the soldier obey. The army and the police may split on the issue. A minor civil war may result. Police are trained to obey courts, while soldiers are trained to obey the government. Without Rwanda, England is finished: Just like America Under Biden

Peter B
Peter B
8 months ago
Reply to  William Brand

Complete fantasy.
There will be no civil wars. Not here. Not in the US.
Besides which, the Army and the Courts are ultimately responsible to the King.
And furthermore, the Supreme Court actually confirmed that a Rwanda-type scheme is legal in principle in its last judgement. In reality, they are merely quibbling about the implementation details. Of course, the more expensive the lawyer, the longer the quibbling continues.

UnHerd Reader
UnHerd Reader
8 months ago

This has happened world wide, and is in effect the creation of the infrastructure for a worldwide tyranny.

William Brand
William Brand
8 months ago

The British system ment that Britain could replace Chamberlain with Churchill in an emergency. America is forced to deal with Biden for his full term, Even if it becomes obvious that he has to go.

Dougie Undersub
Dougie Undersub
8 months ago

Ironic that a supposedly socialist government, claiming to govern for the people, should enshrine, for example, an individual terrorist’s right to remain in this country enjoying family life above the rights of the rest of the population to sleep soundly in their beds.

UnHerd Reader
UnHerd Reader
8 months ago

The movie Brazil may habeen in many ways prophetic.

Louise Henson
Louise Henson
8 months ago

Brexit was a vote – a democratic vote – against all this. ‘Take back control’, remember? We are still waiting for its implementation. Right now we are still stuck in the entrails of Blairism.

Steve Jolly
Steve Jolly
8 months ago

It sounds like this Lord Irvine admired the American system but I wonder if he really understood it. First off, the American Constitution doesn’t actually grant the Supreme Court the power to declare such and so law unconstitutional. That power, called ‘judicial review’ was established by a very early Supreme Court ruling and has been more or less accepted since then, but there’s nothing actually in the Constitution that gives judges a power to overrule Congress on matters of law. It’s rather murky and some strict constructionist Libertarians still argue that the power of judicial review is itself unconstitutional, not that they have any way to change it after two centuries of precedent.

The practical reason the system has sort of worked is because executives at the state and federal levels, governors and the President have free reign to appoint whoever they want AND the appointments have to be approved by the Senate. In practice, they usually appoint political allies, friends, or even family members. In times of relative civil peace, there’s little controversy and the process of appointing judges is automatic. Recently, and during other periods of serious civil disagreement, the appointments have gotten politicized at all levels. It was considered a major issue in the 2016 election for voters. There’s all kinds of shenanigans to engage in. The Supreme Court has had as many as 10 justices and as few as 5. Since 1869, there have always been nine but that isn’t set by the Constitution. FDR tried to add justices to save his new deal programs from a conservative court and now some hardliners in the Democratic party have pushed to try to expand the court again to counter the conservative majority. Justices can theoretically be impeached, but the political bar is so high that it’s only been attempted, unsuccessfully, once in 1805. If all this sounds ridiculous, it is ridiculous, because it’s a system that assumes conflicts between different states, religions, cultures, and people rather than consensus. It seems to me that when this Irvine fellow tried to copy this scheme, he ended up leaving out all the favoritism, partisanship, and scheming that looks like a bunch of nonsense but have actually kept the system more or less stable for most of US history. I can’t say that I blame him for that, but if he had dug a little deeper, he’d have realized how inappropriate it was for a parliamentary consensus based system.

The bottom line is this. In ideal terms, judges are supposed to be independent, objective, and impartial, but the reality is they’re human beings and they’re no more objective, independent, or impartial than any of us is. I’m sure some of them try to be and think they are, but they’re not. The only way to keep one political group from capturing the system and using it to abrogate democracy indefinitely is to balance it somehow and keep it divided enough that neither side ever has a decisive advantage at all levels in all areas, and that there are outlets in place for the other branches of government to intervene in an emergency, keeping the courts somewhat accountable and preventing them becoming some sort of ruling council that sits above elected leaders. The American system does, albeit in a roundabout and horribly inefficient way that’s prone to corruption. It appears your system over there has no balancing mechanism or any way to oust people in the worst cases. It seems inevitable that without these things, the court can effectively hold your entire system and country hostage without any regard for the popular will. Then again, maybe that was the intent all along.

Roddy Campbell
Roddy Campbell
8 months ago

We used to call them traitors.

Susan Grabston
Susan Grabston
8 months ago

The courts are on direct collision with the people. As Sam Harris said recently: if congress won’t do it, the facists will. Politics is going to become very volatile through the combination of the supreme court and HRA. I perspnally don’t believe it will end well.

Davy Humerme
Davy Humerme
8 months ago

Great article Sanjit. It’s a very interesting dimension of the constitutional debate. Centrists love supranational law making and most ordinary people favour common law and the supreme rule of the Parliament elected by a majority. Many who are arguing that law fare was about curbing either a bad Brexit or a poor solution to illegal migration of course despise both. They also have nothing to say about the illiberal imposition on collective rights of lockdowns for a virus which could have been controlled by a much more measured set of policies. Nor do any of them object to the abuse of collective rights inherent in the Net Zero legislation. Since neither uniparty will ditch these supranational straight jackets because human rights grifters will shriek about the rule of law, then they are here to stay. That is until the pitchforks come out.

Rachel Taylor
Rachel Taylor
8 months ago

So Derry Irvine created this situation of overriding Parliament deliberately. Does anyone know of a single substantive benefit for the public, except the lawyers’ purchase of villas in Provence? We all know how individuals can claim sanctuary for their crimes; and we know how the government cannot legislate to prevent manifest wrongs; but are there any benefits at all? The panoply of Human Rights is now just a boondoggle for criminals and lawyers, and everyone knows it.

Rachel Taylor
Rachel Taylor
8 months ago

The irony is that, as a normal UK citizen, your rights to freedom, property and association are far more likely to be infringed by the government that they ever were before Blair’s “improvements”.

UnHerd Reader
UnHerd Reader
8 months ago

Thanks. Interesting and, it seems to me, well observed

John Riordan
John Riordan
8 months ago

“By moving away from the Diceyean common law model, “the new legislation [HRA 1998] will allow the judges to fulfil a stronger constitutional role in a wholly constitutional way”. The HRA, he argued, gave the courts the “constitutional warrant” needed to uphold rights.”

I’m glad this point was at least mentioned in this context. This is one of those subjects where I find it very hard to conclude any firm opinions, because the whole thing seems fiendishly complicated. Having read Hayek, Scruton etc on the history of the common law, but then also seen the constitutional convulsions of the past few years in which the popular will met judicial resistance head on, I can see the merits of both sides of this argument.

Hayek’s insight here is that the law predates not just democracy, but the process of law-making itself: this is the principle of jurisprudence, where law is not invented, but discovered, the point being that law is merely the codification of principles of human behaviour that are implicit to the human condition (this is yet another reason why authoritarian systems always fail destructively: they treat as arbitrary aspects of society that are in fact immutable).

Anyway, the fact is that the means by which law was made in England (which became the model not just for the UK but also the USA and the other Anglophone nations) was the common law model. In modern times we are used to law being created by statute, usually in response to the democratic will as expressed by parliamentary majorities, but in fact the creation of new common law has never stopped: the courts still do this, and judges in courts at all levels in the system see their job not merely as interpreters of existing law, but possessing a duty to make law work when it comes into contact with reality. This was true of the House of Lords, the ultimate court in the nation prior to its replacement with the Supreme Court, and the Supreme Court naturally inherited that duty as well.

There is, regrettably, a simplistic notion that judges are free to reinterpret law in perverse ways that openly contravene the democratic will and that they should not be free to do this. I’m not saying that judges SHOULD do this of course, because the system as a whole is clearly not working properly if it is possible, say, for the human rights of terrorists to secure their protection from deportation, and other obvious failures of the system. But it is also fair to point out that the problem can cut the other way, such as when the rotten parliament of 2017-2019 tried to obstruct Boris Johnson by resorting to lawfare and involved the Supreme Court – in this situation, the courts were dragged into settling a political matter, and many on the legal side made clear their objections to the fact of it.

The point I’m making is that the remedy, whatever it may turn out to be, cannot be a simplistic enforcement of the popular will upon the judicary. Judges are, after all, supposed to possess judicial independence – it’s ironically one of the foundations of democracy, so we can hardly improve democracy by breaking it. The issue of supranational authority over our courts, however, is a separate issue, and I think Lord Sumption’s recent article on the ECHR gives more insight on that aspect of things than here.

Roddy Campbell
Roddy Campbell
8 months ago

Blair knowingly planted a time bomb that will destroy the Britain that so many of us love. This article explains one of its mechanisms. Devolution is another. Poisoning of the principle of Common Law a third.

Unforgivable, vain, wantonly destructive vandalism of something precious and irreplaceable.

Al Hicks
Al Hicks
8 months ago

Blair and Broon did more damage than Hitler or other labour governments did to this country. But the Tories failed to repeal any of it. New Labour put though sheets of crap legislation. THey could have cancelled most of it. And withdrawn from ECHR. We managed well enough before joining it.