Another Step on the Road to Fascism as Raab Plans Attack on Judges’ Independence

Mike’s put up a chilling post about the Tories’ latest attack on our civil liberties. It starts with a tweet from Paul Delaney stating that Dominic Raab plans to set up a mechanism in the UK’s human rights act which would ‘correct’ rulings by the European Court of Human Rights. Mr Delaney concludes ‘We live in dangerous times as Fascism looms large’.

Yes, we do. As Mike points out, this means that if the government does not like the decision made by human rights judges here in Blighty, he will override them. Raab has tried to excuse this attack on the judiciary by stating that it will somehow strengthen democracy by stopping ‘judicial legislation’. But as Mike explains, the judges don’t actually make laws. They simply apply them, and stopping them from doing so breaks the law. He goes on to explain

You see, so-called “case law” – legal precedents set by judges – are only examples of the way the law should be interpreted when applied to particular situations, to be followed if such situations arise again in order to avoid contradiction and confusion. They are not situations in which judges take legislative power for themselves and Raab is lying by suggesting that.

Mike’s article also contains a tweet from Nafzir Ali, explaining that the Human Rights Act is British law, enforced by British judges in British courts. We already have a mechanism for overriding it – legislation. It is dishonest to blame foreigners for it, and challenges to government are part of the basis of democracy.

Jonathan Jones, the former head of the government’s legal service, stated that as parliament was already able to do this, it seems that Raab is attempting to enable ministers to do so without parliaments approval. Mike’s article also quotes Cambridge professor of public law, Mark Elliott stated that giving ministers the power to overturn judicial decisions simply because they didn’t agree with them cut across ‘principles that are the fundamental components of the rule of law.’ Mike’s article goes on with this quotation:

“If that is what is in contemplation, then that is profoundly problematic,” said Prof Elliott. “Indeed it turns constitutional principle on its head.

“Ministerial power to do this would itself be deeply troubling. It would reassign a basic judicial role – interpreting the law – to ministers.

“Ultimately, this all strikes me as part of a project to enhance executive supremacy by treating courts, whether foreign or domestic, as unwelcome interlopers.

“And yet all of this masquerades as an attempt to protect parliament. The reality of this executive power project, as we might call it, is that it will be the executive that is the principal beneficiary of such changes, and the loser will be basic standards of good governance.”

Mike calls this what it is: Fascism. It resembles the Nazis’ attack on the independence of the judiciary during the Third Reich.

The entry ‘Justice in Nazi Germany’ in James Taylor’s and Warren Shaw’s A Dictionary of the Third Reich (London: Grafton Books 1988) has the following passages. These show how the Nazis also attacked the judiciary in order to subordinate to their control. While much of this is far more extreme than what Raab is currently proposing, I’m including it here as a warning of where this ultimately leads.

Hitler’s revision of the laws of Germany did not affect civil laws, such as those on wills, torts, commercial contracts, but criminal law was massively restructured. By 1945, 43 crimes carried the death penalty. Judges who did not conform to the practice of Nazi justice were removed from office; only conformists survived. Their role was to maintain not ‘the state’ but the Nazi view of the state, preserving the existing volkisch (traditional ‘Aryan’ and Germanic) elements, punishing anything like anti-Nazi behaviour and getting rid of any obstruction to the Party’s will. Prosecution lawyers were given added powers and importance in court, while lawyers for the defence were weakened… To ensure the operation of Nazi justice, from 1942 judges and prosecution were allowed to confer without any defence lawyer being present.

From March 1933 Special Courts (Sondergerichte) were set up to try political offences without a jury. In 1934 the People’s Courts (Volksgerichthofe) were established to try cases of high treason, but with a jury drawn exclusively from Nazi party members. This was the court over which the vicious Roland Freisler presided in Berlin and which condemned those accused of complicity in the July 1944 bomb plot.’ (P. 198-9).

As Mike has also pointed out, this has been coming for a long time. The Tories have been stirring up hatred of the courts when they have dared to rule against them. Remember the Heil’s headline labelling the judges who upheld Gina Miller’s challenge to Brexit as ‘Enemies of the people’. That could have come direct from the Nazis, Italian Fascists, Stalin or any of the other totalitarian monsters. The independence of the judiciary has been a vital part of the British constitution with its origins going right back to the founding legal theorists of the twelfth century. It, and parliament, are part of what has made Britain a democracy rather than an absolute monarchy or dictatorship.

And now Raab plans to destroy this bulwark of British freedom. And he’s justifying it by claiming it’s all being done to protect our sovereignty from those evil Europeans. Just as Priti Patel is claiming to be protecting us from the threat of illegal immigration by planning to grant officials immunity from prosecution if they push the channel migrants back out, or don’t rescue them, and someone dies.

The great Tony Benn pointed out that before the Tories start taking away the rights of the settled population, they always begin with immigrants. It’s because they can count on a good reception from the right-wing press by dressing it up in nationalist garb.

But Raab’s attack on the European Court of Human Rights is just a pretext and the beginning. After he’s passed this nasty piece of legislation, he’ll be coming for more British freedoms.

See: https://voxpoliticalonline.com/2021/10/19/fascism-looms-as-raab-threatens-to-correct-court-judgments/

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3 Responses to “Another Step on the Road to Fascism as Raab Plans Attack on Judges’ Independence”

  1. trev Says:

    And just what the heck is Starmer doing about it? This is surely his pet subject, he must oppose such a move. In fact what about the Lords too? They can’t allow any government to get away with something like this.

    • beastrabban Says:

      I also wondered what Starmer is doing. My guess is that he isn’t going to do anything if it means possibly committing himself to an unpopular policy. Besides, given how establishment he is, it seems all too likely he’s sympathetic to it.

  2. Brian Burden Says:

    But judges are part of the establishment! If just a couple of bolshy high-ranking judges were to speak out strongly on this, Raab would be running for cover!

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