17 June 2022

The Rwanda case has exposed the pitfalls of latterday lawfare – now it’s time for ministers to do something about it

By

The British Courts and our legal system are the envy of the world. We know this, because so many people choose to illegally cross the Channel in order to exploit them.

An attempt to remove the most spurious claimants for processing in Rwanda very visibly failed this week. Like a naive tom-tom owner, UK courts followed the direction set out by the Strasbourg Court and applied an absurdly generous interpretation of the individual’s ‘human rights’. Meanwhile, over in Strasbourg itself, a judge issued a peremptory last minute ruling to halt activity without even hearing the UK Government’s legal case.

This blockage was predictable. In the past, governments ran from ever exposing their powerlessness. But this time it is acting as a necessary precursor to reform, to publicly show that failure is not down to a lack of will on ministers’ part. 

The relationship between the nation’s political leaders and its courts must inevitably involve a teaspoonful of tension. All governments have innovative agendas that they need to steer through legal morasses and molasses. Centuries of statute and precedent combine to make a legal system that is not only technocratic and generally bewildering to the layman (including a majority of MPs), but increasingly self-contradictory.

Why so? Because Strasbourg has changed the nature of that relationship from constructive safeguarding to high-handed interventionism. Human rights oversight is now deployed as a living instrument – as a crowbar rather than a wheel clamp. A tangle of increasingly contradictory privileges now have to be weighed against one another, argued by lobbyists pursuing a proxy agenda they know they cannot deliver through democratic means. The activist QC these days is easy to spot; they crowdfund their whims and boast of having entered the legal profession to ‘change the world’ rather than to stop individual injustice. 

There was a time when the public happily acknowledged the complexity of conflicting lines of argument and could sympathise with the judge. Spycatcher was perhaps the start of the rot, prioritising personal rights that discarded duty. Certainly if you dig into the stats, the 1980s is the era of increasing challenges, vertiginous implementation costs, and British judges in Strasbourg dissenting from their peers. I suspect it is no coincidence that this acceleration overlaps with the moment the labour movement and the trades unions realised that Jacques Delors at the European Commission could help them circumvent the elected government of Margaret Thatcher.

Under her successors, the courts became in turn a preferred route to disrupt the Blair Government over its international interventionism, and then a foundry for tools to carjack the Brexit referendum. To add to the errant ECHR we are now burdened with a system of casual Judicial Review, acting like the second parent that a child forbidden from staying up late turns to. Structurally, there is also a new Supreme Court whose physical tether to Parliament has been sliced away.

The misfortune was that this transformation has been happening over an age of scandal. Back to Basics, Cash for Questions, Mandelson, Officegate, Hutton, parliamentary expenses – public faith in politicians inevitably dropped, if not to Italian levels then at least to a grade where many (particularly the young) put more faith in activist lawyers to make their laws, even post-liberal ones.

It will take time to build that confidence and respect back up. An attempt to honestly tackle asylum shopping is a crucial precursor, simply because it is reversing Labour’s policy of moral cowardice.

Blair tried to hide his Government’s powerlessness by masking in advance every case he stood to lose at the ECHR. The Human Rights Act 1998 approached the problem in a typically socialist way – it nationalised it and made it worse. In passing that law, MPs turned a political problem they wanted to do nothing about into a judicial problem they could do nothing about, other than lie.

Change starts with honesty, not just about the feudal hierarchy of the Strasbourg system, but over the wider issues of latterday lawfare. We are yet to see whether ministers will take this crucial battle to its to its logical and necessary conclusion, by breaking with both the Human Rights Act and the supremacy of the European Court of Human Rights. To do so would be an act of immense political integrity – and one that voters will remember.

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Dr Lee Rotherham is Director of The Red Cell, a Brexit think tank.

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