"Since Roman times, despots and authoritarian leaders have tried to erode the power of judges to strengthen their own rule. Britain's justice secretary is in dubious company."
ADVERTISEMENTOn October 17, UK Justice Secretary Dominic Raab announced his intention to overhaul the Human Rights Act.
Raab said he wanted to "stop Strasbourg dictating to us" and promised to find a way to allow the government to "correct" the judgments of the European Court of Human Rights (ECHR).
The UK’s 1998 Human Rights Act has always been controversial. It requires the 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 bound to recognise the authority of the ECHR, which was established in 1959. The government simply does not have the authority to declare that any ECHR ruling is wrong.
Raab’s antipathy toward the ECHR and the Human Rights Act is well known. He has previously talked about "the spread of rights contagion", "unaccountable" judges, and a court "lacking in experience". But if he or anyone else wants to reject the authority of the ECHR and its judges, it would mean not just repealing the Human Rights Act, but also leaving the convention.
Both of these would require parliamentary debate and invite media interest and public scrutiny. The issues would need to be properly aired, discussed, and decided upon.
The UK might well decide to repeal or amend the act, but it would be a dramatic move to seek to leave the convention.
What sort of signal would it send to the rest of the world? Yet this is the only route by which the UK could legitimately disregard the authority of the ECHR.
Rule of law: A principle older than democracy itself
Raab is, of course, courting public opinion when he pours scorn on the opinions of "unelected", "inexperienced" and "incorrect" judges. But his remarks betray an alarming, deep-seated disregard for the rule of law.
This is the fundamental principle that those who wield power – be they kings, emperors, elected governments, or officials – should be held to account 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, however properly elected, to decide that any of the court’s judgments is or is not correct.
Throughout history, conscientious and far-sighted rulers have tried to ensure justice and fairness by recognising legal standards and supporting independent judges to rule on those standards.
The core principles of rule of law can be traced back to the kings of Mesopotamia, who first made laws over four thousand years ago.
These were sets of rules, they declared, that citizens should be able to rely on in their search for justice; ordinary people should be able to cite the law to prevent exploitation by government officials.
Critically, it was also declared that future rulers should also respect the same laws. The Mesopotamian laws, carved onto granite stones for all to see, were meant to last, and to provide checks and balances on the autocratic tendencies of successive kings.
Centuries later, Athenian citizens mounted a revolt against the tyranny of their rulers. They toppled an unpopular leader and then commissioned a legislator to craft rules that would protect their rights and freedoms.
Roman citizens followed suit in 451BCE, when they etched laws onto bronze tablets and set them up in the forum for all to see.
ADVERTISEMENTOver the course of the next five centuries, Rome’s citizens regularly gathered in huge assemblies to debate new laws. They decided on measures to curb the powers of the ruling classes and often summoned corrupt officials to hold them directly to account.
It may have been a cumbersome system – there is no such thing as perfect rule of law – but the Romans did hold fast to the idea that their officials should be held accountable to 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 he has precedent.
Violating the rule of law is an authoritarian practice
Over the course of human history, dictators, autocrats, and authoritarian governments have regularly tried to avoid the rule of law.
In Rome, the emperors who seized power in the early centuries of the new millennium systematically dismantled the institutions of the Republic. They undermined the powers of the citizens’ assemblies and declared that they, themselves, were "free" of the law.
ADVERTISEMENTFurther to the east, powerful Chinese emperors never accepted that they were subject to the controls of law. Their lengthy and detailed legal codes were instruments of governance, not objective standards that could be used to hold the rulers themselves to account.
Later, European colonial powers regularly used laws as a tool of domination, discrimination and oppression, finding reasons to disregard inconvenient rules as they ran roughshod over 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 judiciaries. Authoritarian and autocratic leaders always seek to avoid inconvenient legal constraints and judgements.
However firmly the global community pronounces its adherence to the rule of law, there are those who will try to undermine it.
They may start with small measures, such as restricting the power of their judges in subtle ways or undermining their authority with denigrating remarks, but these too are dangerous moves.
ADVERTISEMENTCalling the judges of the ECHR "unelected" and "inexperienced" is one thing. Suggesting that the UK can declare their judgments to be "incorrect" should alarm us all.
Fernanda Pirie is a 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).