Sunday, December 5

Dominic Raab’s attack on the ECHR should scare us all | View

On October 17, UK Attorney General Dominic Raab announced his intention to reform the Human Rights Act.

Raab said he wanted to “prevent Strasbourg from telling us” and promised to find a way to allow the government to “correct” the rulings of the European Court of Human Rights (ECHR).

The UK Human Rights Act 1998 has always been controversial. It requires UK courts to take into account the laws set out in the European Convention on Human Rights, which was signed by the UK in 1949.

Like all signatories, the UK is obliged to recognize the authority of the ECHR, which was established in 1959. The government simply does not have the authority to declare that any decision of the ECHR is wrong.

Raab’s antipathy towards the ECHR and the Human Rights Law is well known. Previously he has spoken of “the spread of the contagion of rights”, judges “who are not accountable” and a court “without experience”. But if he or anyone else wants to reject the authority of the ECHR and its judges, it would mean not only repealing the Human Rights Law, but also abandoning the convention.

Both would require a parliamentary debate and invite media interest and public scrutiny. The issues would have to be aired, discussed and decided properly.

The UK might well decide to repeal or amend the law, but it would be a dramatic move to try to abandon the convention.

What kind of signal would it send to the rest of the world? However, this is the only way in which the UK could legitimately ignore the authority of the ECHR.

Rule of law: a principle older than democracy itself

Raab, of course, is courting public opinion when he mocks the opinions of “unelected”, “inexperienced” and “incorrect” judges. But his comments betray an alarming and deeply ingrained disregard for the rule of law.

This is the fundamental principle that those who exercise power, whether they are kings, emperors, elected governments or officials, must be held accountable according to legal standards.

These standards must be independent, objective and respected. And in turn, this requires an independent judiciary to affirm what the law is and what it means.

In the case of the European Convention, that is the role of the ECHR. It is not for any signatory government, no matter how elected, to decide whether any of the court’s rulings are correct or not.

Throughout history, conscientious and forward-thinking rulers have sought to ensure justice and fairness by recognizing legal standards and supporting independent judges to rule on those standards.

The fundamental principles of the rule of law date back to the kings of Mesopotamia, who first enacted laws more than four thousand years ago.

These were sets of rules, they declared, that citizens should be able to trust in their pursuit of justice; ordinary people should be able to cite the law to prevent exploitation by government officials.

Critically, it was also stated that future rulers should also abide by the same laws. The Mesopotamian laws, carved into granite stones for all to see, were meant to last and provide checks and balances on the autocratic tendencies of successive kings.

Centuries later, Athenian citizens rebelled against the tyranny of their rulers. They toppled an unpopular leader and then commissioned a legislator to develop rules to protect their rights and freedoms.

Roman citizens followed his example in 451 BC. C., when laws were engraved on bronze tablets and placed in the forum for all to see.

Over the course of the next five centuries, the citizens of Rome met regularly in large assemblies to debate new laws. They decided to take steps to curb the powers of the ruling classes and often summoned corrupt officials to hold them directly accountable.

It may have been a cumbersome system (there is no perfect rule of law), but the Romans clung to the idea that their officials should be held accountable for objective legal standards. The principles of the rule of law are even older than those of democratic government.

These are the principles that Raab now wants to undermine. And it has precedent.

Violating the rule of law is an authoritarian practice

Throughout human history, dictators, autocrats, and authoritarian governments have regularly tried to avoid the rule of law.

In Rome, the emperors who took power in the first centuries of the new millennium systematically dismantled the institutions of the Republic. They undermined the powers of the citizen assemblies and declared that they themselves were “free” from the law.

Farther east, the powerful Chinese emperors never accepted that they were subject to the controls of the law. Its long and detailed legal codes were instruments of governance, not objective standards that could be used to hold rulers accountable.

Later, European colonial powers regularly used laws as a tool of domination, discrimination, and oppression, finding reasons to ignore inconvenient rules while trampling on the rights of their subjects.

And in recent decades, the ruling parties of Poland and Hungary, to name just two, have made concerted and blatant attempts to undermine the authority of their judicial powers. Authoritarian and autocratic leaders always seek to avoid inconvenient legal judgments and limitations.

As firmly as the world community adheres to the rule of law, there are those who will try to undermine it.

They may start with small measures, such as subtly restricting the power of their judges or undermining their authority with disparaging comments, but these are also dangerous moves.

Calling ECHR judges “unelected” and “inexperienced” is one thing. To suggest that the UK can declare its judgments “incorrect” should alarm us all.

Fernanda Pirie is Professor of Anthropology of Law at the University of Oxford and is the author of the forthcoming book, The Rule of Laws: A 4,000-Year Quest to Order the World (Profile, 2021).

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