"Judges should be deprived of the powers that enable them to make political decisions." Credit: Dan Kitwood/Getty
![](https://unherd.com/wp-content/uploads/2019/09/Gray-100x100.jpg)
It is only to be expected that the Conservative manifesto pledge to review the Human Rights Act should provoke a liberal moral panic. Floating in the empyrean, human rights are supposed to transcend mundane political divisions. Without a judiciary with the authority to override political decisions, there is no freedom or justice for individuals or minorities. Any attempt to curb rights is a prelude to tyranny.
Like much in contemporary liberalism, this response combines high-minded hysteria with ignorance of history. The Human Rights Act became law in 1998 and came into force in 2000. Was the UK a tyranny until then? Power was significantly more accountable. Judgements involving basic political values were not the property of a judicial elite, but made by legislators who could be removed in democratic elections. Attacked by liberals and some Conservatives as a species of “elective dictatorship”, this was in fact a system that secured self-government. There was no Supreme Court standing above government that could nullify its decisions. Political choices among conflicting goals and values were made openly in parliament.
Only 20 years ago, the British judiciary lacked the capacity, and probably the will, to become seriously involved in politics. Judicial independence was never in doubt. At the same time — and not unrelatedly — the judiciary did not assert the authority to overturn acts of government. It would have been unthinkable for it to pronounce, as the Supreme Court did unanimously in Miller 2, that a decision on proroguing parliament would have “an extreme effect on the fundamentals of our democracy”.
Clearly, this is political language — and of a crude, silly, over-heated kind. Equally clearly, that is not how the judges see it. In their minds, their views on political questions are so self-evidently correct that they are not political views at all. For them, it seems, the fact that politics remains a sphere of irresolvable disagreement shows that collective decisions about basic freedoms are best decided by an elite that is not politically accountable. It is no accident that the dominant strand in liberal thinking over the past generation has been a species of anti-political legalism.
A compelling case can be made for returning to the pre-1998 regime. Whether the Supreme Court is allowed to continue in its present form is not the most important issue. Disestablishing the Court, and returning it to a more limited role as a Lords committee of final appeals, could have a useful symbolic role in curbing judicial overreach. But whether a body with the title of Supreme Court continues to exist is not the real issue. Nor is the central question of how judges are chosen. An American-style system of political nomination should be firmly rejected. The proper remedy for the politicisation of the judiciary cannot be to make the judiciary yet more political. Instead, judges should be deprived of the powers that enable them to make political decisions.
The Conservative manifesto suggests derogations from the HRA where it hobbles government in its most essential tasks. Human rights laws have obstructed the deportation of terrorists and other criminals and limited the terms under which they are sentenced and released, exposed the armed forces to vexatious historic law-suits and dictated the conditions in which prisoners are held in British gaols. Amending the Act to prevent these abuses would be an advance, but would not remove the power of judges to impose unjustified limits on the authority of government. The single most direct route to this end would be by repealing the Human Rights Act, and withdrawing from the European Convention on Human Rights.
It will be pointed out that the ECHR, which the HRA incorporated into UK law, was framed largely by British civil servants. But in the nearly 70 years that have followed since it came into force, the scope of the Convention has expanded greatly, as European judges have interpreted its provisions ever more broadly (Judicial over-reach extends beyond the inflation of rights; the ruling by the Court of Appeal that a third Heathrow runway would be unlawful shows courts acting as arbiters of public policy).
A British Bill of Rights has been proposed as an alternative, but would not necessarily reduce judicial over-reach. Drawing up such a bill would be a protracted process, and with much of the legal profession in thrall to theories that enhance their own standing and scope of operations, the resulting rights would probably be little different from those in force at present. The rule of law would still mean rule by lawyers. If the HRA were repealed, and the UK no longer signed up to the ECHR, the situation would alter fundamentally. Britain would become like Australia, a modern democracy that operates without a national bill of rights.
Liberals will respond with horror to any suggestion of returning to the pre-1998 British ancien regime. Yet it secured the values an earlier generation of liberals rightly prized. Homosexuality between men was legalised in 1967, as was abortion except in Northern Ireland. (In a civilized reform, same-sex marriage became lawful in England and Wales in 2013, and Scotland a year later. Extending the benefits of marriage, it widens the good life available to gay people. Human rights are irrelevant.) The Race Relations Act making it illegal to refuse housing, jobs or public services to people on the basis of their ethnic origins, was passed in 1968. In all these cases, liberal values were secured by legislation, not the judicial adjudication of rights.
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
SubscribeYes, agree with just about all of that. When I joined a political party in 2016 I had understood that that party proposed to scrap the European Human Rights Act 1998 as part of Brexit, but it didn’t happen. I fear the likelihood of it ever happening is remote.
Yes, Prof. Gray’s points are well-made, and should have been obvious to more people a long time ago. A seemingly utopian policy has been instituted in the only places it could be – where there was already the rule of law, respect for the individual and access to justice.
However, arguably, the damage has been done. It may be equally damaging to try to put back the clock. To a considerable extent, human rights were an attempt to export a secular codification of a particular moral system, and the codification and legalism was part of that strategy – it “packaged” them. To renounce them at home now might look dreadful.
So we have to keep the present system because to revert to the previous one ‘might look dreadful’. To whom ? Are you suggesting the most important thing is to act as an example for illiberal foreign governments ?
Surely the situation whereby control of our borders is removed from the elected government is terrible for democracy and also an appalling advert for the concept of ‘human rights’ .