Cabinet post like no other

Dressed in his full ceremonial robes, Michael Gove will visit the law courts this week to take his oath of office as lord chancellor. Sitting on the bench, alongside the lord chief justice, Gove will swear to respect the rule of law and ensure the provision of resources for the courts.

After the formal ceremony, Lord Thomas of Cwmgiedd will have a chance to talk to the journalist-turned-politician with whom he must now develop a close working relationship. And, as Gove shares an austerity-style sandwich or two with some of Thomas’s most senior judicial colleagues, the new secretary of state for justice will perhaps reflect on the fact that his is a cabinet post like no other.

Nobody will worry about the fact that Gove is not a lawyer. Those days have gone. What matters more is that, without being unduly deferential, he should understand and respect the principles that lawyers stand for. Gove’s decision not to speak publicly during his first few days in office, while frustrating for reporters, suggests a willingness to learn. Leading lawyers have also kept their powder dry, relieved that they will no longer have to deal with Chris Grayling but anxious to know what sort of justice secretary his successor will be.

Gove’s trickiest problem is his party’s manifesto promise to ‘scrap the Human Rights Act and introduce a British Bill of Rights’. This, said the manifesto, would ‘break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK’.

As his lawyers will have told him last week, the Supreme Court is already our final human rights arbiter. The ‘formal link’ is merely a requirement for courts in the UK to ‘take into account’ decisions from the human rights court in Strasbourg. Rulings against the UK are not binding on our own courts — though they do bind the government in international law.

In trying to make sense of this, Gove will have the assistance of Dominic Raab as one of his junior ministers. Raab was a solicitor at Linklaters who spent time on secondment to the human rights organisation Liberty before serving for six years as a legal adviser at the Foreign Office. He then worked for shadow home and justice secretaries before winning a safe Conservative seat in 2010.

In his book The Assault on Liberty, published a year earlier, Raab outlined the thinking that he will no doubt have taken with him to the Ministry of Justice. ‘Under a bill of rights,’ he wrote, ‘the UK courts would not need to follow or even be guided by the unwieldy and inconsistent Strasbourg case law… The [Supreme Court] should be treated as the final court of appeal in the UK and our judges should focus exclusively on giving effect to a Bill of Rights rather than fretting about the political implications of any subsequent application to Strasbourg – which are for governments to worry about.’

Raab is intelligent enough to recognise the flaws in this analysis. First, the Strasbourg court seems much more reluctant these days to rule against the UK and other western nations on anything that can be brought within the state’s ‘margin of appreciation’. But, if Raab disagrees, he then runs into the second problem: the UK will suffer an increasing number of defeats at the human rights court. The whole point of requiring UK courts to take Strasbourg case law into account was to head off these defeats in advance.

Divergence between Strasbourg and the UK courts ‘in relatively marginal cases’ is a risk that Raab is willing to take. As he says, ‘there are no risk-free alternatives’. He is even prepared to ‘make full use of the diplomatic review process to cock a snook at the Strasbourg court in those less serious cases where we think – on principle, not expediency – that it has got its case law wrong’. I take that to mean he would simply continue to ignore the Strasbourg  ruling on prisoners’ votes.

But Raab maintains that pulling out of the convention is ‘neither necessary nor desirable’. In this, he clearly disagrees with Grayling’s policy paper published last October, which said that unless Strasbourg rulings were to be made advisory – a change that could not be achieved merely by ‘engaging’ with the Council of Europe, as the paper had imagined – ‘the UK would be left with no alternative but to withdraw’ from the convention.

So we will end up with a Gove/Raab bill of rights that – to satisfy the Sewel Convention in Scotland and the Good Friday agreement in Northern Ireland – looks very much like the current Human Rights Act. As the lord chancellor might reasonably be asking his advisers, what is the point?