Never mind Labour’s promise not to raise income tax, national insurance or VAT – the party will soon be jacking up taxes for everyone. That sums up the Conservatives’ attack line for this election campaign. But in focusing almost wholly on tax, the Tories are missing what threatens to become the real theme of a Keir Starmer government: the eclipse of elected politicians and the continued draining away of power to the courts.
The Labour leader effectively decriminalised assisted dying in 2009, before he was even an MP
According to polls, Labour is heading for a majority of more than 200. That in itself would clip the wings of the House of Commons. Opposition parties will be too weak to challenge a Starmer government, while Labour’s backbenchers will have virtually no power either, as it would take too many of them to threaten Labour’s majority. But who needs large numbers of parliamentary bills when – as Labour showed last time it was in government – the left can achieve what it wants by passing overarching pieces of legislation and relying on judicial activism to do the rest.
Take migration. One of the reasons support for the Tories has collapsed is its very visible failures to ‘stop the boats’ and curb illegal migration. That was not for want of trying. We have had the Rwanda Bill, as well as numerous failed deals with France. But every initiative has been usurped by a combination of the European Convention on Human Rights and Britain’s own Human Rights Act, which incorporated the former into UK domestic law. Both act as a permanent legal infrastructure capable of frustrating the will of the elected House of Commons. On migration, the Blair government has effectively been continuing to rule from beyond the political grave.
No one knows better than Starmer how small tweaks by lawyers can effectively change the law with hardly anyone being aware of it. He is now promising a Commons vote on assisted dying – which, in keeping with past practice, will presumably be left as a matter of conscience to individual MPs. When the subject was debated in the Commons in 2015, a bill to legalise assisted dying was defeated by 330 to 118 – with Starmer voting in favour. But what did that count for when he had personally effectively decriminalised assisted dying in Britain 15 years ago, before he was even an MP? As Director of Public Prosecutions (DPP) in 2009 he issued guidelines which recommended that friends and relatives would not be prosecuted for helping the terminally ill to commit suicide so long as it was the intention of the person to take their life and that they had merely assisted, not encouraged the act. This was following the case of 23-year-old Daniel James, who died at the Swiss clinic Dignitas after being left tetraplegic in a rugby accident, his parents having helped him to travel to Switzerland.
Neither government nor parliament had spoken, yet Starmer had effectively amended the Suicide Act 1961 – which confirmed that helping someone to take their life is a criminal offence – with no public debate, let alone democratic vote involved. As a result, people helping friends or family members to kill themselves have been able to act with increasing impunity, even though they are technically breaking the law.
As DPP Starmer did much the same with abortion law. In 2013 an undercover investigation by the Daily Telegraph appeared to catch two doctors red-handed as they offered an abortion to a woman who told them she didn’t want to have a baby girl. Abortion on the grounds of sex selection is meant to be illegal – terminations are only to be offered when two doctors agree that continuing with a pregnancy would be injurious to the mother’s health. Yet Starmer declined to bring a prosecution, arguing that it would be impossible to prove that sex selection was the only reason for the abortion, so it wouldn’t be in the public interest for the Crown Prosecution Service to proceed. Again, he effectively decriminalised something without any intervention by parliament.
Five years ago the former Supreme Court judge Lord Sumption used the BBC’s Reith Lectures to warn how what he called ‘the expanding empire of the law’ was seizing powers which ought to be the preserve of elected politicians.
While judges have always been involved in the evolution of the law – through common law, for example – he asserted that during the past three decades ‘the courts have developed a broader concept of the rule of law which greatly enlarges their own constitutional role… they have inched their way towards a nation of fundamental law overriding the ordinary processes of political decision-making, and these things have inevitably carried them into the realms of legislative and ministerial policy’. As well as snatching power from parliament, he argued, courts have been extending their tentacles into what has previously been private matters between citizens.
Britain, in other words, is evolving from a democracy towards a kritarchy – the rule of lawyers. Starmer is the living embodiment of this process. Read through his programme for government and one thing jumps out: his determination to involve the courts even more deeply in our day-to-day lives, in ways that will prove hard to predict and difficult for future governments to unwind. As well as the Human Rights Act, the last Labour government left us with the monster that is the Equality Act. By introducing the concept of ‘protected characteristics’, the act effectively handed immense power to minority groups in ways which a Conservative government has proved incapable of dismantling in spite of ministers regularly lashing out at the ‘woke’ takeover of public institutions.
Starmer now wants to extend the provisions of the Equality Act. He promises to enact the ‘socioeconomic’ duty which requires public bodies to adopt effective measures to address inequalities resulting from differences in occupation, education, place of residence or social class. In other words, a Starmer government will elevate being working-class to yet another protected characteristic, allowing people to take public authorities to court if they felt they were being discriminated against on that basis.
What greatly enhances the powers of judges is when we have laws based on vague principles
Labour is also promising a Race Equality Act, which would extend the right to equal pay from gender to race – this in spite of the havoc which has been caused by existing legislation. When equal pay was first legislated for in Britain in 1970, it was designed to protect women who worked alongside men – for clear cases of discrimination, essentially. Yet over the decades the concept has been subtly extended to include ‘work of equal value’ – in other words people doing different jobs but which a court or tribunal has ruled are somehow equal.
Moreover, a 1999 ruling by the European Court of Justice opened the way to discrimination cases based on statistical differences on pay without evidence of active discrimination. The result has been catastrophic for residents in Birmingham, whose council went bust as a result of an equal pay claim which awarded £760 million in back pay and damages to cleaners, cooks and care staff – female-dominated occupations employed by the council. Their work had been deemed to be of ‘equal value’ to that of dustmen and other male-dominated occupations.
When Birmingham sought to settle equal pay cases in 2012, the Conservative-led coalition reacted with delight, seeing that Birmingham Council was Labour-controlled. The Conservatives failed to notice that equal pay law had put Birmingham council, along with all public bodies, in an impossible position, expected to carry out highly subjective assessments to compare different
occupations so that they didn’t fall foul of the law. If the court made a different – again highly subjective – judgment, then the council was stuffed.
The present government has done nothing to prevent the same debacle happening with other councils and public bodies. With the Equality Act, the Brown government planted a huge bomb under its successors, and it is one that the present government has failed to defuse.
What has happened on equal pay law is typical of how power is drifting away to the courts. What greatly enhances the powers of judges is when we have laws based on vague principles which are open to a wide variety of interpretations. There is no better example than the ‘right to a family life’, which over the years has come to be interpreted in all manner of ways, many of which undermine government efforts to control migration and maintain law and order.
The lawyers who drafted the original European Convention on Human Rights (ECHR) in 1950 are unlikely to have foreseen that the right to a family life would one day help the likes of the Albanian criminal Gjelosh Kolicaj to remain in Britain. He was supposed to have been deported from Britain after serving a sentence for money-laundering, yet a court ruled it would infringe his human rights because he had family here.
Nor could they have foreseen that the ECHR would one day rule in favour of a group of elderly Swiss citizens who argued that their right to a family life had been infringed because they hadn’t been able to go outdoors during a heatwave – the Swiss government being blamed for the hot weather on the grounds that it hadn’t taken sufficient action against climate change.
In a chat with London mayor Sadiq Khan to celebrate Eid this week, Starmer seemed to promise new laws that would make ‘Islamophobia’ a crime. Yvette Cooper, likely to be home secretary in a few weeks’ time, has also said that police will be obliged to record all ‘non-crime hate incidents’ of Islamophobia. Given that we already have laws against racial and religious hatred, it is hard to see what would be gained from this – except to make it a crime to attack or criticise the religion of Islam itself (as Ed Husain discusses in his article). As with the SNP’s Hate Crime Act, the power will come with the vagueness of the wording. If such an Islamophobia law arrives, no one will feel safe even making a mild joke about Islam, because they couldn’t be sure how a court would interpret the law.
If and when the Tories return to power, they will find it a lot more difficult to tackle the drift of political power to the courts. By then, a Starmer government will have further entrenched the process. If the polls are correct, Britain won’t be so much electing a government for the next five years as voting for the permanent enfeeblement of parliament and representative democracy.
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