Tony Blair and Gordon Brown were the last two consequential Prime Ministers of the United Kingdom. They understood what they wanted to achieve and had a strategy to implement it. Since Brown left office, it has all been a strange combination of bland technocracy and crisis management. The image which comes to mind when trying to think of a suitable metaphor for Government since 2010 is that of a bank manager continually having to try to stomp out a series of fires in his office rubbish bin – and gradually growing more sweaty, puce-faced and bedraggled as a result. Blair and Brown were different: they each had their eye on the future, and they made big, long-lasting changes to the U.K. constitution accordingly.
The most significant feature of the New Labour constitutional realignment was the enactment of the Human Rights Act 1998 (HRA). The HRA is the biggest of conservative commentariat bugbears, given a run for its money only by the Equality Act 2010 (itself best thought of as an extended riff on chords which the HRA first struck). But it is surprising how few of its opponents take the time to analyse and describe what exactly it does and why. This has resulted in a failure amongst conservatives to think through human rights reform strategically (although Dominic Raab, former Secretary of State for Justice, gave it a decent shot; more on him, perhaps, in future posts). Here, I submit for your amusement my own thoughts on the matter.
The HRA is best understood as the crowning achievement of what John Gray once called the dream of liberal legalism. It is striking how many New Labour high-ups – Jack Straw, Stephen Byers, Geoff Hoon, Harriet Harman – were former lawyers, but even more striking that both Tony Blair and his wife, Cherie Booth, were barristers. These were all people who would have gone to university in the 1960s and 1970s and imbibed the notion – then coming to prevalence in law schools on both sides of the Atlantic – that the job of lawyers, and indeed law itself, was not to provide and apply a mere framework of rules, but to give effect to and promote certain values. Law, they would have been told – largely implicitly – was the way to enshrine progressive ideals as being beyond politics, and therefore beyond opposition or democratic challenge. And it followed that as soon as Blair’s Government came to power, it was going to put this vision of law into effect: it was, so to speak, going to constitutionalise New Labour’s “century of progressive politics” and transform both law and politics in the U.K. for good.
The HRA, then, at heart represents a judicialisation of politics. It seeks to transfer political decision-making away from democratic processes and into the courts, where it will be unsullied by whatever grubby, atavistic views exist amongst the electorate. And it is very important to be clear about this, because ever since the time it was enacted people have been describing the Act, misleadingly, as simply a way to incorporate the rights contained in the European Convention on Human Rights (ECHR), originally ratified in 1951, into U.K. law. The U.K., being what is called a ‘dualist’ state, must pass an Act of Parliament in order to give effect to an international treaty in domestic law, and this, it is commonly thought, is what the HRA was chiefly for. It just ‘at long last’, some 47 years after the fact, made the rights contained in the ECHR enforceable in U.K. law, by U.K. courts.