It is a symptom of how quickly the news cycle turns these days that attention has already moved on from Dominic Raab’s resignation (apparently to the important question of exactly how foolish Dianne Abbott is). But we need to dwell on it a little longer. The story is important for two reasons.
First, what happened to Raab shows us that when it comes to the thorny issue of conspiracy theories, we very frequently overlook the middle ground between the views of the tinfoil hat wearers on the one hand and the anti-disinformation guardians of sensible technocratic soft-Left centrism on the other. Events are not, in other words, generally as depicted either by ‘conspiracy theories’ or by ‘official narratives’. Usually, what actually happened is somewhere in the middle – a kind of hybrid of what polite society thinks happened and what the conspiracy theorists believe.
Second, Raab’s fate also demonstrates to us that merely trying to change the law is a fool’s errand. It probably won’t succeed, but law really follows politics, and politics follows culture. If you want the law to do what you want, you need to change minds first. This is very hard, but there is no alternative.
The issue of the conspiracy to begin with, then. In a recent Daily Sceptic article, Mark Ellse raises the important issue of perspective. What is the difference between ‘firm management’ and ‘bullying’? In the article, Ellse describes a workplace trainer essentially attributing the difference merely to the person making the assessment. To the employer, what looks like firm management looks to a union like bullying, and vice versa.
Dominic Raab is accused of having ‘bullied’ senior civil servants. The allegations are almost comically flimsy. But we have to bear in mind the issue of perspective. Think about your own experiences in school. If, like me, you went to a bog-standard comp, you probably experienced a variety of teaching styles and standards. What you will undoubtedly have noticed is that if you think you are getting something out of a class, you will have a high tolerance for strictness – even verbal abuse – on the part of the teacher. (A particular member of staff at my school used to grab pupils by the lapels, call us all kinds of names, throw exercise books at us and God knows what else, but he was by some distance the most popular teacher in the place because we really felt as though we learned things in his class.) On the other hand, if you don’t feel as though the teacher is any good, his or her strictness is interpreted as the mentality of a petty tyrant and he or she is despised.
Thinking of matters in this way sheds light on the situation with Dominic Raab. If senior civil servants in the Ministry of Justice had agreed with his agenda, then his behaviour may well have been interpreted as the appropriate level of seriousness with which to deal with an important job. But the truth is they didn’t agree with his agenda – particularly when it came to human rights, which we will come to in due course – and his actions were therefore interpreted by them as ‘bullying’.
Raab’s removal has all the hallmarks of an establishment coup, in other words, but it didn’t happen as a result of a ‘conspiracy’. And nor is it as simple as the generally accepted narrative, in which fragile ‘snowflakes’ demanded the removal of Big Shouty Man. Rather, what happened was that the civil servants in question, who almost universally – being members of the ‘new elites’ – will have hated the Government’s reforms to human rights law (in the form of the proposed Bill of Rights Bill), had an almost visceral dislike for Raab, who was known to be the chief proponent of those reforms. This dislike caused them, unconsciously, to interpret his behaviour in a certain way. And this ultimately led to his removal. It was a coup, in other words, but it was one which nobody planned. It was an unconscious coup – a coup carried out by ‘the blob’, which rejects the Bill of Rights Bill in the same way that white blood cells motivate themselves to expel an infection.
Anyone in any doubt about this just needs to look at the reaction of the bien pensant classes to Raab’s removal. I received an email first thing in the morning after he resigned (which was a Saturday, bear in mind) from the prominent U.K. human rights NGO Liberty, trumpeting the “good news” that “Raab is gone” and the “Rights Removal Bill” he championed “will not be returning”. This is not the normal language used when a Government minister resigns over bullying allegations; it the kind of thing people say when they think their own side has just won an important victory.
What is it about the Bill of Rights Bill that makes it so despised? There are basically two things.
The first is easily explained and understood. The Bill proposes to make it easier to deport what it calls “foreign criminals”. (This sounds somewhat inflammatory but actually just replicates the language used in an earlier statute from the New Labour era.) Much of the focus here has been on Clause 8 of the Bill, which restricts the grounds on which a court may prevent deportation of a “foreign criminal” on the basis of it being incompatible with that person’s right to family life under Article 8 of the European Convention on Human Rights (ECHR). Equally important are Clause 20, which limits the court’s power to allow appeals against deportation orders, and Clause 24, which prevents courts acknowledging interim measures issued by the European Court of Human Rights (which would ordinarily be grounds for staying a deportation order).
There is no point in beating around the bush, here: the British establishment, as almost everywhere, likes immigration and the basic idea behind open borders, because a) it is in its class interests that there should be masses of cheap labour imported into the country, b) lots of members of the establishment have friends and family members from other countries because they tend to be what David Goodhart calls ‘anywheres’, and c) it feels virtuous. The pro-immigration bias in the waters in which senior civil servants and their ilk swim is therefore profound, and they almost have an allergic reaction to anything which suggests immigration should be curtailed in any form.
The second is a bit more complicated, and requires a very brief explanation as to why the legal establishment (of which senior civil servants in the Ministry of Justice undoubtedly comprise a part) monolithically feels such loyalty to the Human Rights Act 1998, which imports the provisions of the ECHR into U.K. law, and which the Bill of Rights Bill was intended to repeal. This is that it facilitates the circumvention of democracy through technocratic means.
The Act does this through a number of different methods, but the most important of these is really psychological or cultural – it gives license for judges in the U.K. to think of themselves as engaging in an emerging pan-European constitutional order; a jus commune, as they sometimes call it, which has human rights at its centre and gives judges great power to override democratic decision-making through what is called ‘dynamic’ or ‘evolutive’ interpretation of the ECHR. The basic idea here is that, rather than paying attention to what the ECHR actually says, and much less what its creators thought it meant, courts should treat the text as a ‘living instrument’ whose meaning evolves over time. The role of the court is to give effect not to the intentions of the drafters but to what contemporary understandings of ‘human rights’ should dictate – and also to take the lead in figuring that out on a ‘teleological’ basis (that is, in such a way as to bring about the ‘real’ purpose of the Convention – as understood, it goes without saying, by the judges).
In short, the way in which the ECHR is viewed across the courts of Europe is that it is a freestanding licence for courts to develop human rights law as they see fit and in light of their own enlightened views about the way society should be arranged. Democracy, in this view, is a petty concern that should not be allowed to interfere with the ECHR’s telos; section 3 of the U.K. Human Rights Act 1998, for instance, allows courts to read into statutes words which simply are not there to give effect to their own understanding of Convention rights (hedged, very loosely, by the caveat that it must be done only “in so far as possible”). Never mind what the elected representatives of the people decided should be the law – it is for judges (who are of course unelected) to decide what the law ‘really is’ on behalf of the hoi polloi.
Our technocratic legal establishment loves this, of course. Partly, it’s because it is entirely in keeping with its own Platonic worldview, by which the experts, who know what is best, organise society, and the lower classes exert discipline and follow along. And partly it’s because of what it promises: if you can just make sure that all graduates in law think the ‘right’ things at university and go on to have the ‘right’ views, then in the end judges throughout the land will be giving effect to the ‘right’ understanding of the law. (In this, of course, what is happening under the rubric of human rights law in the U.K. and across Europe is very much in keeping with that line of American jurisprudence which begins somewhere around Oliver Wendell Holmes and runs through to Ruth Bader Ginsburg, and whose chief proponent was Ronald Dworkin. Dworkin summarised the contempt for democracy embodied in this entire body of thought succinctly in Taking Rights Seriously, when he observed that since “reconciling inconsistencies in public morality” requires “some dialectical skill”, “it [was] not to be taken for granted that the [common man’s] political preferences have been subjected to that form of examination” and hence judges should do it instead.)
The Bill of Rights Bill took this beautiful vision head on by making clear that courts were not to engage in ‘evolutive’, ‘dynamic’ or ‘teleological’ interpretation of the ECHR, but rather were to have regard to what the treaty actually says, and what its drafters intended it to mean (discerned through the travaux préparatoires or ‘preparatory work’, i.e., negotiating materials). This is a lawyerly way of saying that the Bill of Rights Bill was going to force courts to stick more closely to the text of the ECHR and prevent them developing human rights law as they saw fit. It was, in short, going to make clear that it is for democratically elected legislators to make law, and not judges. No prizes for guessing what the legal establishment made of that. Again, the reaction was visceral.
The lessons of all of this for anybody who wants to rein in the increasingly managerial and authoritarian tenor of the way in which we are governed are harsh ones. The first is that the ‘deep state’ – if by that we simply mean the entrenchment of particular values and class interests within the state apparatus – is real, and it is powerful. Rock the boat too much and it will find a way to get rid of you. This won’t happen through ‘backstairs intrigue’ but through a process that is much more instinctive – almost biological. Your actions will simply be construed as bullying or in some other way undesirable, and you will be vomited out accordingly. And the people who do it won’t even conceive of it in those terms at all.
The second is that this managerial-cum-authoritarian way of conceptualising the role of government, in which a clerisy of experts decides what is best and the rest of us simply have to follow along, is now so widespread among our governing classes that it will be extremely difficult to uproot. Certainly, merely seeking to change the law, as Raab did, just will not work in itself. Law follows politics, and if the political class in the main does not want the law to be changed, it won’t be. Instead, the task is much larger: the minds of an entire generation have to be transformed – or entirely new institutions created. Good luck with either of those things; but we need to be realistic about the position in which we find ourselves.
Dr. David McGrogan is Associate Professor of Law at Northumbria Law School.
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