In a recent collection of essays on critical legal thinking the editors claim that ‘not only does law increasingly resemble politics, but politics increasingly resembles law’. What emerges is an ‘indistinct fuzzy middle zone’ in which powerful Governments are often glad to operate. However, as law comes to touch on more and more areas of life so too do we witness the ‘dissipation of the legal form in ways that allows power to assert a more pervasive grip on life’. This dissipation, which strips away the rules of legal argument, the procedures of legal institutions, and even the fundamental principles of the legal system, is becoming a hallmark of the current Government’s approach to human rights law.
The nature of the Government’s assault on the law is becoming ever more clear. The Conservative leadership has had to accept that neither their Liberal Democrat partners nor Britain’s international obligations would permit a wholesale rejection of the European Convention on Human Rights. However this has not prevented an attack on the system. The Bill of Rights Commission and the attempts to reform the European Court of Human Rights are two clear examples of the Government’s assault on the Convention and its application in Britain. Despite the problems with these efforts, they at least represent an attempt to effect change through legal and institutional reform.
The true danger of the Government’s approach is seen not in its attempt to reform the Convention and the Human Rights Act but by the efforts to undermine the rules and institutions already in place. The central focus of this campaign has come to bear first on the issue of prisoner’s voting rights and now on the deportation of foreign nationals.
In the former case the Government chose to act as cheerleader for the House of Commons as the latter gave approval to a resolution rejecting the Court’s ruling on prisoners voting. This rebellion against the European Court of Human Rights case law on the right of prisoners to vote is deeply problematic. It is an anti-constitutional action that serves to undermine the Convention system as a whole. Britain cannot seek to influence the persistent violators of the European Convention on Human Rights when it reserves the right to ignore rulings that displease it.
However, even more problematic is the assault this week on the domestic judiciary. The Home Secretary’s plan to use a House of Commons motion to alter the application of human rights law in deportation cases is a clear attempt to ‘dissipate law’. It is in violation of the separation of powers, the rule of law, and just about every other constitutional principle one might care to invoke. Parliament remains the pre-eminent institution in the British Constitution. However, its role in the legal system is to articulate broad rules for equal application in all cases – not to tell the judiciary how to decide certain cases.
It is not necessarily the wording of the resolution that is problematic – for that might simply reiterate the existing limitations on human rights in the European Convention itself. Rather, the problem lies in the idea that Parliament would seek to give the courts specific direction to undermine the ordinary judicial exercise of weighing up an individual’s rights against the necessities of government in a democratic society.
Even if Parliament were to direct the judiciary on how to rule, it should do so through the appropriate legal form: an Act of Parliament. The Home Secretary has threatened just that if the judiciary ignores the Commons resolution. Although such legislation would be unlikely to come to pass (it is difficult to see the House of Lords agreeing to it) the threat is potent. The Home Secretary has sought to wield raw power of a most dangerous kind – punitive populism – and to direct it against the judiciary. The MPs might not brandish pitchforks and torches but it is rabble-rousing nonetheless. One can only hope that institutional respect will yet prevail.
Professor JAG Griffiths famously declared that laws were ‘merely statements of a power relationship’. This may well be true. However, in stating that relationship, in establishing institutions to uphold it, and in prescribing rules as to application, the legal system offers a forum for the rational resolution of specific problems of government. It may be politics but it is politics in search of reason. The Government seeks to abandon that lofty ambition by appealing to more base instincts. It is not only the vulnerable that will suffer – but also the constitution of law itself.