As we have seen, Raab claims that the Bill of Rights “helped mould a separation of powers between government, Parliament and the courts – a system of checks and balances to prevent any one branch of the state from dominating the others or abusing its power”. But as far back as 1976 the Conservative sometime Lord Chancellor, Lord Hailsham, was warning that the parliamentary system could be exploited in such a manner that it could act as an ‘elective dictatorship’.
And in his 1988 Radcliffe Lectures, Lord Scarman expressed his disquiet about precisely the “lack of checks and balances within the structure of our Parliamentary government and the absence of legal safeguards against the abuse of Parliamentary power”. He was particularly concerned that “parliamentary government has been transformed into government by the political party which by enjoying a majority in one House of Parliament has its hands on the controls of executive and legislative power”.
The ‘Elective Dictatorship’ in Operation
Since these words were written, and particularly during the years following the Referendum and Brexit, we have seen a massive extension of Executive power, including the exercise of Henry VIIIth powers, and it has become ever clearer that the supremacy of party also entails the supremacy of its leader. Furthermore, so far from respecting the independence of the judiciary, which is such a key aspect of the separation of powers repeatedly lauded by Raab, the government has also made abundantly clear its determination to weaken it. For example, it has announced its intention to ‘reform’ Judicial Review in ways that have been described variously by legal experts as ‘emasculation’ and ‘evisceration’. Furthermore, both the home secretary and the prime minister have publicly attacked lawyers who provide representation to migrants seeking asylum in the UK. This has led to threats of physical violence to those lawyers and has been strongly criticised as intimidatory both by the International Bar Association and the Lord Chief Justice.
And now we face the very real prospect of the long-threatened dismantling of the Human Rights Act, and indeed possible withdrawal from the Convention if Attorney General and Tory leadership candidate Suella Braverman has her way. But as Tom Bingham all too clearly states in The Rule of Law:
“We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law; and in which judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed”.
Executive Supremacy and Judicial Independence
It is thus frankly absurd for Raab and the anti-human rights press to accuse the judiciary of threatening the sovereignty of Parliament, when in fact the real threat to that sovereignty lies in overweening Executive power. And this, in turn, is now being wielded in order to threaten the independence of the judiciary. What is clearly needed is institutional reform which will constrain the power of the Executive by strengthening the countervailing power of Parliament in the ways suggested by Lord Scarman and many others concerned at its weakness. But this is not what concerns Raab and his press allies, for whom the assault on human rights is part of a much wider battle which includes drastically reducing the power of the state, waging divisive culture wars and exploiting wedge issues for party political advantage, distancing the UK as far as possible from our European neighbours, and protecting, if not indeed enhancing, the powers of the Tory-supporting press barons whilst at the same time muzzling critical media voices. As Laura Gies argues in the edited collection The UK and European Human Rights (2015):
“Rights and liberties have, to use a marketing term, very different brand identities. Put simply, civil liberties stand for brand Britain while human rights represent brand Europe. The former signify a solid, homegrown product that has stood the test of time, while the latter stand for an inferior foreign surrogate which failed to impress Bentham and Dicey in their time and is still struggling to convince today’s media commentators. In the space of just a few years, rights have become a metaphor for an overbearing and interfering State while liberties nostalgically evoke an era when government did as little as possible, its principal duty being to refrain from interfering with individual liberty”.
Abolishing Rights in the Name of Liberty
Viewed thus, to write a book-length attack on the Human Rights Act and the European Convention on Human Rights, to call it The Assault on Liberty and then to abolish the Human Rights Act in the name of ‘the government’s enduring commitment to liberty under the rule of law’, to quote from Raab’s Foreword to the consultation on the ‘reform’ of the Act, does admittedly have a certain logic to it. But only if one shares Raab’s atavistic starting point. However, if one rejects his conception of liberty, which is an essentially individualistic one, and does not subscribe to his dewy-eyed, rose-tinted, Our Island Story view of Magna Carta, the Bill of Rights and much of the rest of the history of these islands, surely a more fitting title would be No Rights Please, We’re British.
Taking away people’s rights in the name of liberty (or rather a very particular conception of it) has a distinctly Orwellian ring to it, which reminds one of his remark in his famous 1946 essay ‘Politics and the English Language’ that: “In our time, political speech and writing are largely the defence of the indefensible … Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness”. Indeed. A measure called the Rights Removal Bill might raise quite a few suspicions, but that is precisely what the Bill of Rights Bill is intended to accomplish.
Julian Petley is emeritus and honorary professor of journalism at Brunel University London His most recent book is the second edition of Culture Wars: The Media and the British Left (Routledge 2019), co-written with James Curran and Ivor Gaber. He is a member of the editorial board of the British Journalism Review and the principal editor of the Journal of British Cinema and Television. A former print journalist, he now contributes to online publications such as Inforrm, Byline Times and openDemocracy.