Grieve for the rule of law

Former attorney general lays into Conservative lawyers

The former Conservative attorney general Dominic Grieve KC has added his voice to the lawyers and retired judges who have criticised the justice secretary’s Bill of Rights Bill, which Dominic Raab says will have its main Commons debate “shortly”.

Grieve, who served as a Conservative MP for 22 years and was attorney general from 2010 to 2014, wondered whether the government was looking for a way of pulling out of the human rights convention altogether.

“I remain mystified by what in practice Dominic Raab is trying to achieve”, he said last night, “unless it is a Machiavellian plot to create such variance between the interpretation of the convention rights by our domestic courts and that of the European Court of Human Rights that the government is able to throw its metaphorical hands up in horror at the frequency of appeals to, and adverse judgments from, Strasbourg — and claim popular support to withdraw entirely from the convention.”

Dominic Grieve KC

That’s denied by Raab. Perhaps Grieve’s suggestion of a plot was slightly tongue-in-cheek. But the former senior law officer was entirely serious when he said that most of Raab’s proposals were about fettering the ability of courts in the United Kingdom to interpret the human rights convention in accordance with cases decided by the Strasbourg court:

Gone would be the judicial dialogue between our Supreme Court and the European Court that has done so much in influencing the views of the European Court in the way the government would approve. Examples include cases ranging from Horncastle on hearsay evidence to Hutchinson on whole-life sentences.

Grieve was delivering the Leveson lecture at the UCL judicial institute in London last night. Technical problems prevented the the lecture from being live-streamed as planned but the institute is planning to publish the full text on its website within a day or so, together with a recording. This account is based on an advance text.

Recalling his last visit to the college shortly after he was replaced as attorney general by Jeremy Wright in 2014, Grieve confirmed that he had lost his job because of his support for human rights:

David Cameron, as prime minister, had decided that the Conservative Party manifesto of 2015 would contain a commitment to “scrapping” the Human Rights Act and replacing it with a British Bill of Rights that sought to limit the scope of how the European Convention on Human Rights was interpreted in our domestic courts. As I disagreed with this policy, he dispensed with my services.

But although human rights was the starting point of Grieve’s lecture, his main focus was on a broader issue: why some politicians and their supporters appeared to be so critical of the rule of law.

The former law officer referred to an “excoriating critique” of Raab’s Bill of Rights Bill by Lord Mance, a former deputy president of the UK Supreme Court. As Mance had explained, said Grieve, the bill was “just a recipe for further conflicts between the executive and both domestic and international courts”.

Grieve thought Mance’s lecture, delivered at the end of October, “ought to be compulsory reading for every MP”. However, he continued, “that most MPs won’t know Lord Mance’s lecture even exists — let alone read it — is part of the problem”.

He recalled the situation shortly before his father Percy Grieve QC was first elected to parliament.

Sixty years ago the Commons was full (some argue far too full) of practising lawyers who were familiar both with the role of the judiciary and the operation of the law. They could, when needed, defend and explain the legal system even when critical of an individual decision.

Then there was the lord chancellor who, not only a lawyer but as the most senior member of the judiciary, was accorded a high status at the heart of government. The office was key to ensuring both a respect for the law and an informal dialogue between the government and the judiciary that served the rule of law well.

Today, despite the oath provided for in the Constitutional Reform Act 2005, the duty on the lord chancellor — to respect the rule of law, defend the independence of the judiciary and ensure the provision of resources for the efficient and effective support of the courts — has been treated as optional when it has clashed with the political views and ambitions of the office holder…

Central to the lord chancellor’s standing was that the office was not a route for the furtherance of careerist political ambition or, once gained, for further judicial advancement. This has now entirely changed with successive lord chancellors gratuitously offering up cuts to their already overstretched budgets and sitting mute over proposals to deliberately breach international law.

There had been similar problems with the attorney general and her deputy, Grieve argued.

Their role as legal advisers to government should be underpinned by observance of their professional standards as lawyers and a ministerial code that emphasises the need for the entire government to be acting and be seen to act with propriety, even when faced with complex challenges.

How then does this standard compare with the conduct of Suella Braverman, who appeared to have had no qualms whatever in endorsing an interpretation of international legal obligations that allowed the United Kingdom Internal Market Bill to be introduced, when that interpretation was almost universally regarded as untenable and led to the resignation of the treasury solicitor and the advocate general for Scotland?

Another example has been the propensity to refer sentences of imprisonment for review by the Court of Appeal, under pressure from parts of the press, when it was clear on any objective assessment that the sentences being questioned were not unduly lenient… Such conduct then undermines the trust of the judiciary in the government’s standards of behaviour generally and it makes any dialogue between the two much harder.

Grieve thought the government’s attitude to its defeats in the cases known as Miller 1 and Miller 2 — followed by Boris Johnson’s election manifesto of 2019 — marked the development of a “novel constitutional principle: that governments enjoying the confidence of a parliamentary majority have essentially a popular mandate to do whatever they like and that any obstruction of this is unacceptable”.

There was also, more reasonably, the promise of a constitution, democracy and rights commission to look in depth at all these issues and come up with proposals “to restore trust in our institutions”. This might have been of considerable interest. But, like most Johnson promises, such a commission has never materialised.

The former politician, now back in practice at the bar, accepted that “some level of tension between the executive and the judiciary may be viewed as healthy. But as the judiciary is made up of human beings, such tension, especially if allowed to escalate, can induce feelings of being beleaguered and thus is corrosive of the mutual respect each branch of the state should have of the other.”

The judges’ instinct, under pressure, was to push back. “This in turn reinforces the belief of some politicians that, in a constitutional system that has been made increasingly rights-based, the judiciary might look for opportunities to overrule the principles of parliamentary sovereignty on which they see their power to govern as depending.”

Most lawyers saw this as far-fetched. There had been passing comments from two or more senior judges, no longer alive, that gave it some credence. In Grieve’s view, those did not justify a recent proposal from the Judicial Power Project, a campaign group he said was “intimately linked to a sectional interest of the Conservative Party that comes across at times as almost cultish in tone”.

Its prime academic mover had proposed a change in the law to allow the lord chancellor and justice secretary to veto the appointment of any senior judge who might “undercut settled constitutional fundamentals, including parliamentary sovereignty”.

Grieve gave that short shrift.

Short of posthumously refusing to appoint Lord Steyn to judicial office for his obiter reflections in Jackson or for that matter Sir Edward Coke for his judgment in Dr Bonham’s Case in 1610, it is hard to see who this is specifically aimed at; as no current judge has questioned the sovereignty of parliament to make or repeal laws.

But the general intent is clear: to control the judiciary by removing one of their key roles in our modern constitution of being able to interpret statutes in line with evolving general legal principles (a power which is quintessentially consistent with the way the common law system works) and to scrutinise the extensive powers used by ministers and public officials which affect the liberties and rights of citizens.

As these executive powers have grown massively in the last century so has the importance of there being an independent check on their use.

Grieve does not regard the gulf between political practice and the law as unbridgeable. It is possible, he believes, to bring the executive and the judiciary back into harmony.

Restoring the traditional role of the lord chancellor in government would be good start. It does not require him to sit again as a judge — which would be impossible — but to return the office to being responsible solely for the good administration of the justice system and, importantly, to remove the inconsistent burdens of prisons and penal policy…

The judiciary for its part has come a long way in its senior members being willing to appear before parliamentary committees to explain their role and their concerns at how justice can be delivered within the budget provided for the courts…

But to achieve this requires getting out of the echo chamber of demands for action — which politicians too often choose as their comfort zone — and giving time and effort to reaching some objectively reasonable assessment to what is in our national interest.

Sadly, on the evidence of the imminent return of the current Bill of Rights to the Commons and the most recent comments of the home secretary (in breach, I would add, of collective cabinet responsibility) that she favours pulling out of the European Convention on Human Rights altogether, this is not about to happen any time soon.

“We must hope for better,” he concluded.