Sunday, 17 October 2021

Dominic Raab MP - the Lord Chancellor - on judicial review and human rights


On 15 September 2021, the Prime Minister moved Dominic Raab MP from the Foreign and Commonwealth Office to the Ministry of Justice to replace Robert Buckland QC MP as Secretary of State for Justice and Lord Chancellor. Raab was "sworn in" as Lord Chancellor on 23 September 2021. 

The reasons for moving Raab to Justice were not made entirely clear but we might surmise that Buckland was considered to be not going far enough with his reforms to judicial review which I wrote about earlier.

Raab was at Justice previously. He was Parliamentary

Under-Secretary of State for Civil Liberties and Human Rights from May 2015 to July 2016.  He was also there, in the capacity as Minister of State for Courts and Judiciary, from June 2017 to January 2018. He therefore brought with him to his new role the work he had done previously as well as his long-standing views about human rights which he set out in a book - The Assault on Liberty: What went wrong with Rights - in 2009.

The Sunday Telegraph 17 October 2021 (£) provides details of Raab's thinking about judicial review and his desire to 'revamp' the Human Rights Act to avoid Strasbourg 'dictating'.

First, Raab appears to be entirely supportive of the reforms to Judicial Review introduced by Robert Buckland in the Judicial Review and Courts Bill

Judicial review was 'being used to "harpoon" major infrastructure projects such as the construction of new roads. He referred, by way of an example, to a judge quashing a £1.7 bn road project that included a tunnel near Stonehenge.  The case appears to be R (Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2021] EWHC 2161 (Admin). The High Court quashed a Development Consent Order (DCO) under the Planning Act 2008 s,114. 

The Stonehenge case may provide an example of where a power to issue a suspended quashing order might be useful. The suspension would allow Ministers to take appropriate action to put right any legal defects identified by the court. In turn, that might save public money in some cases where, as Raab put it, 'huge amounts of taxpayer's money or commercial investment might be bound up' in a scheme.

Secondly, Raab defends the reforms to judicial review in immigration cases where he said that the process was being used to overturn tribunal rulings in 'unmeritorious cases'.  He described the system as 'crazy' - a 'waste of money' - a 'waste of resosurce' - which the government was seeking to cut out. All of that appears to be a reference to the proposed reversal of the CART case which permitted judicial review of Upper Tribunal decisions - discussed in my earlier piece.

So much then for his defence of the judicial review proposals though it is important to note that he also said 'we quite rightly have judicial check on the executive' but that this had to be done in a 'constructive and sensible way which allows the Government to deliver the projects that it's tasked and mandated by Parliament to do ...'

Let's now turn to human rights where, so far, little has been revealed about the government's plans although reform was included in the Conservative Party's 2019 manifesto. 

1. Raab did not mention withdrawal the UK from the European Convention. In my view, to do that would make the UK a pariah State within Europe. Therefore, the right to take a case to Strasbourg will remain in place even though the exercise of the right is subject to various requirements. The UK, as a member State of the Council of Europe, will continue to be bound by Strasbourg decisions to which the UK is a party - (see Art 46 of the Convention).

2. There is likely to be a British Bill of Rights to replace 'Labour's Human Rights Act'.  Just as a previous Labour government targeted the Industrial Relations Act 1971, the present Conservative government has its sights fixed on the HRA 1998.

Raab's speech to the Conservative Party conference is worth noting here - 

Dominic Raab – 2021 Speech to Conservative Party Conference – UKPOL.CO.UK

3. The government plans to introduce an ability for legislation to be passed to "correct" court judgments which Ministers believe are "incorrect."  The Telegraph article was not clear about the court (or courts) whose judgments might be overturned in this way but the idea that a Minister be given power to ovveride court judgments he or she disagrees with ought to raise alarm bells for reasons well explained by Professor Mark Elliott - see the short video here  and also by legal commentator David Allen Green on his Law and Policy blog - here.

Raab does not think it is the job of Strasbourg to 'dictate' to the UK. If a Minister had power in domestic law to disapply a Strasbourg ruling a problem then arises. The UK is bound by decisions at Strasbourg to which it is a party. That is a stipulation of the Convention and, as such, a requirement of international law but the government would be legislating to breach its international law obligation.

3. Raab also aligns himself with 'senior military figures' who, we are told, are concerned about rulings relating to British soldiers fighting overseas. Here is a clear reference to cases such as Al Skeini v UK 2011. See also the Baha Mousa Inquiry.

To me, the whole process is imbued with the government's dislike of any outside influence on the decision-making ability of Ministers. Anything found to be inconvenient must not be permitted to stand in the way.

A consultation is to appear in the next two months. Any proposals will require detailed scrutiny both within and outside Parliament.

17 October 2021

Addendum 18 October:

R (Evans) v Attorney General [2015] UKSC 21 at para 53 - In M v Home Office [1994] 1 AC 377, 395, Lord Templeman in characteristically colourful language criticised “the proposition that the executive obey the law as a matter of grace and not as a matter of necessity [as] a proposition which would reverse the result of the Civil War”. The proposition that a member of the executive can actually overrule a decision of the judiciary because he does not agree with that decision is equally remarkable, even if one allows for the fact that the executive’s overruling can be judicially reviewed. Indeed, the notion of judicial review in such circumstances is a little quaint, as it can be said with some force that the rule of law would require a judge, almost as a matter of course, to quash the executive decision.

Addendum 19 October:

IF the UK were to denounce the European Convention on Human Rights then the EU would be entitled to cease cooperation on criminal justice as provided for in the Trade and Cooperation Agreement - EU Law Analysis (Professor Steve Peers) 4 January 2021.

Common law alone cannot be relied upon to protect rights - see the piece by Conor Gearty at UK Constitutional Law - On Fantasy Island: British Judges and the European Convention on Human Rights

Addendum 26 October:

Article by David Davis MP (Conservative Haltemprice and Howden) - Judicial review is the people’s right. I will fight this government’s attempts to destroy it (msn.com)

Addendum 18 November:

Various articles about judicial review - Judicial review | UKAJI

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