Comment

It’s not ideological to oppose rule by foreign judges

Critics of the Government’s plans to bring powers back to the UK ignore the costs of the current situation

Since the 14th century, this country has vested legal authority in our own institutions, not foreign courts. The clearest statement was arguably in Henry VIII’s Statute in Restraint of Appeals of 1532.

Aiming at removing any possible scope for misinterpretation, it laid down that “all causes in question within this realm shall be definitively adjudged and determined within the king’s jurisdiction and authority and not elsewhere … any foreign inhibitions, appeals, sentences, summons, citations, suspensions, interdictions, excommunications, restraints, judgments, or any other process or impediments from the see of Rome, or any other foreign courts or potentates … notwithstanding.”

These laws were not repealed until the 1960s. By then we were already in the European Convention on Human Rights. Soon we would be in the European Community. The world had changed. But the sensitivities had not.

We saw that last week when the European Court of Human Rights banned the Government’s planned deportation flight to Rwanda. It did so on flimsy legal grounds and against the view of all UK courts.

That is what it means to be subject to the jurisdiction of a foreign court.

Similarly, when I set out last July our plans to block the European Court of Justice’s role in Northern Ireland, I was told I was being ideological and no one in Northern Ireland cared which court was in charge. They should now. Last week Maros Sefcovic, the EU’s so-called negotiator on the Protocol, reactivated last spring’s legal case against us for the grave offence of bringing British chilled meats to Northern Ireland. He then opened another two cases, one, incredibly, for carrying out too few checks.

All these cases will automatically end up in the European Court of Justice unless we concede them first. No one seriously thinks we will get a fair hearing, so the Government will face paying a fine or defying the Court.

That is what it means to be subject to the jurisdiction of a foreign court.

We can all see now that these questions are not theoretical. This is why it is so welcome that the Government is taking action.

Liz Truss’s Northern Ireland Protocol Bill goes much further than anything I considered last year. If it is passed, the Court of Justice will no longer decide disputes affecting Northern Ireland. UK regulations will become law there again and more normal arrangements will prevail for goods movements (though – a small point – rather than “green” and “red” channels, which still imply everything is going through customs, it would be better to talk of “free entry” and the “customs channel”).

This Bill will get its Second Reading on Monday. I hope that thereafter the Democratic Unionist Party will signal they will go back to Stormont soon. This will help the Bill make the speediest possible progress through Parliament.

We got equally good news this week from the Lord Chancellor, Dominic Raab. His proposed new “Bill of Rights” (strictly speaking, our second such Bill, as we already have one, from 1688) will replace the Human Rights Act in its entirety – and not before time.

The new Bill provides that the Supreme Court is the “ultimate judicial authority” on European Convention rights in domestic law. It sets out that “judgments, decisions and interim measures of the European Court are not part of domestic law, and do not affect the right of Parliament to legislate”. It restricts the ability of the UK courts to follow Strasbourg doctrine except in strictly limited ways. (And it also includes a very welcome provision on free speech.)

In short, as Cambridge Professor Mark Elliott wrote yesterday, the Bill aims to “diminish the domestic legal impact of the transitional human rights system … and to make significant inroads into the powers of domestic courts”.

Prof Elliott seems to think this is a bad thing. I do not. The correct balance between the powers of government, of Parliament and of the courts is something we can debate ourselves, in our own institutions.

Some commentators seem to think that any change to the courts’ powers is an attack on judges and an end to the rule of law. They need to think again. The judges are not Platonic guardians. This country protected human rights long before the European Convention. The Convention did nothing to protect us against the most egregious lockdown provisions during the pandemic. Our own political institutions, and free debate in them, in the end did that.

Labour, of course, doesn’t buy any of this. The party decided to back the EU against Britain over the Protocol before it even saw Liz Truss’s Bill. Yesterday, in Parliament, a Labour spokesman, one Ellie Reeves, was reduced to criticising the Bill of Rights because it took away the “duty of the state to protect everyone from harm”, an expansive view of the role of government sadly unfeasible in this fallen world. We can’t have any confidence in these people to do the right thing for Britain.

Brexit was about the integrity of the country and our ability to govern ourselves. That’s what the Bills will deliver. Let’s get behind the Government and make it happen.