Raab to revamp Human Rights Act to avoid Strasbourg ‘dictating’
BRITISH soldiers and institutions such as the police and health service should not be “dictated to” by judges in Strasbourg, Dominic Raab has said, as he unveiled details of a planned overhaul of the Human Rights Act.
In an interview with The Sunday Telegraph, the Deputy Prime Minister and Justice Secretary suggested that the European Court of Human Rights was imposing too many “obligations on the state” rather than simply defending individuals from “undue interference”.
He also warned that foreign criminals’ use of the Act’s “right to family life” remained a “serious issue” that he intended to address, as there were “somewhere between 100 and 200 cases a year [where] foreign national offenders are frustrating deportation orders”.
Mr Raab set out details of the areas of the human rights regime he wants to change, having announced an “overhaul” of the Human Rights Act at the Conservatives’ annual conference.
He separately warned that judicial reviews, under which individuals can challenge government decisions, were being used to “harpoon” major infrastructure projects, as he set out planned changes to the current system.
Mr Raab revealed that he is devising a “mechanism” to allow the Government to introduce ad hoc legislation to “correct” court judgments that ministers believe are “incorrect”.
“We want the Supreme Court to have a last word on interpreting the laws of the land, not the Strasbourg court,” he said. “We also want to protect and preserve the prerogatives of Parliament from being whittled away by judicial legislation, abroad or indeed at home.”
Mr Raab said it was “wrong” that judges in Strasbourg ruled on matters relating to British soldiers fighting overseas and revealed he was examining how to curtail the court’s influence in the UK. His intervention comes after senior representatives of the Armed Forces told a government review British troops were being put “in harm’s way” due to fear of facing legal action under the European Convention on Human Rights.
He said: “If you read the negotiating history to the European Convention, it was never supposed to have extraterritorial effect ... I think that’s wrong, that any court is effectively, through judicial legislation, creating new law rather than just applying it. So I think we will want to have a look at that.”
His concerns also include the extent of the Strasbourg court’s reach in the UK, where the Human Rights Act states that judges must take European Court of Human Rights decisions “into account”.
“I don’t think it’s the job of the European Court in Strasbourg to be dictating things, whether it’s the NHS, whether it’s our welfare provision, or whether it’s our police forces,” Mr Raab said, adding that those public services should be governed by “elected lawmakers” rather than “judicial legislation”.
Strasbourg judgments in recent years included a case in which the court ruled that the Government’s “bedroom tax” discriminated against domestic violence victims. Outlining plans to use legislation to “correct” judgments, Mr Raab said: “We’re identifying the problems and we’re making sure we fix them.
“Where there have been judgments that, albeit properly and duly delivered by the courts, we think are wrong, the right thing is for Parliament to legislate to correct them.”
‘The public don’t want to see these big projects, or big initiatives, totally undermined and capsized through litigation’
‘I don’t think it’s the job of the European Court in Strasbourg to be dictating things to us, whether it’s the NHS, welfare provision or police forces’
Built some 150 years after the Foreign Office and without any of its splendour, there are few central government buildings dings that contrast more starkly with h Dominic Raab’s former department. t. But the nearby Ministry of Justice e is, at least, familiar territory for the ex- x-Foreign Secretary, whose first ministerial nisterial posts were in the department, under David Cameron and Theresa May’s y’s administrations.
Now, a month into his new roles as Justice Secretary and Deputy puty Prime Minister, Mr Raab is preparing aring to steer legislation through the Commons ommons that will reform the judicial review view process used to bring legal action against government decisions.
In an interview with The he Sunday Telegraph, Mr Raab sets out ut government concerns that at judicial reviews are being used to “harpoon” major infrastructure projects ects such as the construction of new roads. oads.
The process is also being ng used to take legal action to overturn urn immigration tribunal rulings ngs in “unmeritorious cases”, Mr r Raab says.
“We have something like ke 750 of these a year, the success s rate is three per cent,” says s Mr Raab, a former Foreign n Office lawyer. “This is people challenging their appeal decision, and then the upper tribunal’s refusal al to let them appeal again. I think it’s crazy. It’s crazy from the point of view of protecting the tribunal ... It’s crazy for the immigration system to have that litigation ion attrition against them. And d
... I think fundamentally from a taxpayer’s point of view, it’s a waste of money, waste of resource, skewing outcomes. So ... we’re going to cut out all of that.”
The Judicial Review and Courts Bill will also allow judges to “suspend” quashing orders, in order to allow the Government time to take corrective action before a court simply halts measures such as sanctions against terrorists and major construction projects, which are deemed to be unlawful.
In July, a judge quashed a £1.7billion road project that included a tunnel near Stonehenge. Grant Shapps, the Transport Secretary, has expressed concern to MPs that major schemes can “get tied up in knots, where democratically elected people have made perfectly proper decisions that are endlessly questioned and undermined on matters of extreme technicality, costing the taxpayer sometimes hundreds of millions of pounds in delay, and frustrating this Government’s goal to level up the country.”
The Conservatives promised a major road-building programme as part of their 2019 manifesto.
Mr Raab says: “The classic case we look at is one of the terrorist asset freezing cases back in 2011, against a member of al-Qaeda. The Government had to rush through legislation to prevent what was a technical fault that was found, from undermining our counter-terrorism agenda. So I want to make sure that the judges have got and are mandated to use what are called prospective or suspended quashing orders.”
He adds: “If there’s an infrastructure project ... there’s some legal challenge with it ... what this would allow is the courts to point to the problem, but give the Government a chance to fix it without scrapping or disrupting the infrastructure project on which huge amounts of taxpayers’ money or commercial investment might be bound up in. That’s not what the public want. They don’t want to see these big projects, or big initiatives, totally undermined, and capsized through litigation.
“We know we’ve got a very litigious culture, I’m a recovering lawyer myself, and we quite rightly have judicial check on the executive. But it’s got 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 [and ensures that] taxpayers’ money is not being squandered because projects are being harpooned.”
Mr Raab is separately dusting off plans he drew up during his previous spell in the Ministry of Justice in 2015 with Michael Gove, the then Justice Secretary, for a new British Bill of Rights to replace Labour’s Human Rights Act.
Having announced an “overhaul” of the legislation at the Conservatives’ annual conference earlier this month, he reveals that the Government’s approach to rolling back some of the consequences of the Act will include introducing ad hoc legislation to “correct” court judgments that ministers believe are “incorrect”. His concerns include the extent of the European Court of Human Rights’ reach in the UK. The Act says judges must take its decisions “into account”.
“I don’t think it’s the job of the European Court in Strasbourg to be dictating things to, whether it’s the NHS, whether it’s our welfare provision, or whether it’s our police forces,” Mr Raab says. Those public services should be governed by “elected lawmakers” rather than “judicial legislation”. Equally, he agrees with senior military figures who are
concerned about rulings relating to British soldiers fighting overseas.
Mr Raab also wants “the Supreme Court to have a last word on interpreting the laws of the land, not the Strasbourg court [the European Court of Human Rights]. Just as [now we have] left the EU, we don’t want the Luxembourg court [the European Court of Justice] overriding our judges.”
Mr Raab’s human rights reforms, which he expects will be subject to a consultation within the next two months, will be centred on restoring power to Parliament. “We want to protect and preserve the prerogatives of Parliament from being whittled away by judicial legislation, abroad or indeed at home,” he says.
Mr Raab’s job responsibilities as Deputy Prime Minister are still being “finalised and formalised”, but will include playing a role in Boris Johnson’s domestic reform agenda, he says. “If I can help the PM, if I can lighten his load, and focus on delivery and bringing ... the different crosscutting departments together to drive things forward, great.” He will also remain on the Brexit strategy Cabinet sub-committee and the National Security Council.
As a former Brexit Secretary, Mr Raab might be forgiven for believing some concessions now being offered by the EU on Northern Ireland could have been helpful had they been on the table during the negotiations in which he was involved in 2018.
“For those of us who argued for a long time that there are better ways of doing things, I think that’s been demonstrated not just by what we’re seeing, and what we’ve been arguing, but by the fact that there clearly is some more flexibility on the EU side.”
The Government’s concerns about a continued role for the European Court of Justice in policing the Northern Ireland Protocol have, Mr Raab says, been heightened by the rigidity of the EU’s application of the rules governing the goods trade on the island of Ireland.
“We’ve seen a pretty purist and dogmatic approach by the EU ... If they’re taking that approach, then of course it increases our nervousness about what any Luxembourg court decision would apply.”
Despite reports of a tussle with Liz Truss, his successor at the Foreign Office, over Mr Raab’s apparent desire to retain access to Chevening, the country residence of the Foreign Secretary, the Deputy Prime Minister says the pair have had no direct discussion over the property they will now be sharing. He insists: “I’ve spent less than a minute even considering it.”