17 January 2025

Starmer’s ‘rule of lawyers’ is sidelining Parliament

By

As any young right-winger who spends a little too long on Twitter will tell you, the struggle of Nick (30 ans) is the struggle of our age. 

The social contract is fixed against him. His pay is meagre after the rent for his Zone 4 flat; his ever-growing tax burden goes to subsidise the housing and benefits of young Karim (25 ans) and the cruise-holiday lifestyle and healthcare of Simon and Linda (70 ans). It encapsulates the hopelessness of being a young graduate in London, and the despair we confront as we look at the Centre for Policy Studies’ projections

Yet if Nick’s situation wasn’t already sufficiently bleak, this week brought the news of another potential charming beneficiary of Nick’s state-compelled largesse: Gerry (76 ans). Yes, the former Sinn Fein leader is one of some 400-odd Republicans set for a taxpayer-funded payout because of Keir Starmer’s attempts to repeal Troubles legislation. It’s like the fever dream of a Telegraph leader writer. 

Having long since disappointed my mother’s hopes of becoming a barrister, I will defer to the mighty Richard Ekins to explain what is going on. But the gist is that Labour are repealing the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which, among other things, barred Adams and co for claiming compensation for detention during the Troubles for suspected involvement in terrorism. 

The Supreme Court ruled in 2020 that Adams had been detained unlawfully, based on a misreading of the Carltona principle of conferred ministerial authority. He and hundreds of others claimed for compensation. The then-government passed legislation to reverse the judgment and prevent the payouts. But last year a judge ruled that law to be incompatible with the Human Rights Act 1998. 

Rishi Sunak’s administration appealed this decision. But our new Labour Government dropped this. In the words of Hilary Benn, the Northern Ireland Secretary, this demonstrates an ‘absolute commitment to the Human Rights Act’. The Government now aims to use a ministerial order to repeal the relevant parts of the legislation, followed by a full repeal of the 2023 act itself.

Like most readers, I did not know of the Carltona principle before this news broke. Yet a quick survey of the new Policy Exchange paper makes clear that the last government had a very strong case in appealing. The paper is backed by 16 leading peers, including Lord Hope, a former deputy president of the Supreme Court, who cautioned Parliament against surrendering ‘its sovereign authority’. 

But, I would argue, this is exactly what Starmer’s government is aiming to do. The Prime Minister is a void: a late middle-aged man of conventional, soft-left opinions, who thought that being our premier might be an entertaining late-stage career change. He doesn’t really understand economics and growth. He has no experience in foreign policy. But he really, really cares about human rights law. 

Starmer has been an MP for under a decade, but has been studying and practicing law since the 1980s. His instinct in a dispute between Parliament and the courts is to assume that the latter is in the right. Having been wowed by the European Convention on Human Rights as a student, his view of human rights is naturally expansive – a decision best encapsulated by his appointment of Richard Hermer as Attorney General. 

Hermer is a long-time friend and mentee of Starmer: the Plato to his Socrates, the Harrison to his McCartney, the Lewis to his Morse. Both were early human rights law specialists, with Hermer taking a particular interest in international law. As Yuan Yi Zhu outlines, the pair share a ‘thick’ conception of the rule of law, treating it as a wide-ranging set of liberal values that check Parliament’s authority. 

By shunting Emily Thornberry aside to get his old chum into the Cabinet, Starmer was making a very particular statement about what he wanted his government to focus on. In his Bingham lecture last year, Hermer outlined what he saw their mission as being: to make the UK ‘once again… a champion for international courts and institutions’ against ‘populist’ challenges to the rule of law as he sees it. 

This not only explains why the Government dropped its predecessor’s legal challenge, but why it has expended so much political capital on the Chagos farce and signed up to the International Criminal Court’s arrest warrant for Binyamin Netanyahu. Legal institutions and their rulings must be elevated above all else, even the decisions of politicians, in what Juliet Samuel calls the ‘rule of lawyers’. 

This is very good news for Starmer and Hermer, who now can promulgate and enforce a worldview that they have spent a lifetime cultivating. But the pair’s prostration before human rights doctrine cannot escape political reality. Complying with the advice of the International Court of Justice might give them both a warm glow but is meaningless if Mauritius and Donald Trump won’t play ball.

Even a man so lacking in political instincts as Starmer can tell that ‘bunging taxpayers’ cash to Gerry Adams cos my mate told me to’ isn’t the best look. It is an especially bad look when the mate in question has previously represented Adams, just as his close friend and ally Philippe Sands is currently representing the Mauritian government: three old pals working in harmony to screw over the British state.

Starmer now suggests he will do anything he can to stop this compensation being handed out. That’s a ludicrous suggestion when he is scrapping a piece of legislation designed to do exactly that. But to change course would be to suggest MPs can legislate to reverse decisions they dislike. That would in turn imply that sovereignty lies in Parliament, not the courts. That is anathema to the Starmer weltanschauung

The Right must oppose this wholeheartedly. The Starmer/Hermer axis threatens the traditional basis of our constitution. They want to render Parliament impotent and make ministers subservient to their departmental lawyers. 

It’s thus promising that Lord Wolfson and Shadow Justice Secretary Robert Jenrick have come out strongly against this decision. Any future Tory government must not repeat the errors of its predecessors. The post-1998 legal order cannot remain intact. Scrapping the Human Rights Act and leaving the ECHR would be a clear start. A lot of sackings are in order. Ekins and Zhu must draw up a list of replacements. 

We shan’t go the full ‘Henry VI Part II’. But Nick has had enough.

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William Atkinson is Assistant Editor of ConservativeHome.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.