6. The rule of rules
The European Convention on Human Rights, judicial review, planning and regulation
One of the ways that power has been redistributed is through an excessive reliance on rules over political judgement. This is particularly visible in two controversial issues that concern who gets to live where: irregular immigration, and housing.
Here too, moves to constrain old concentrations of state power have ended up creating new problems.
I. Problem
In the decades after the Second World War, the British state was more dominant than at any point in our peacetime democratic history: even the judiciary was strikingly deferential towards its authority. Between them, central and local government exercised broad-ranging power, much of it focused on providing welfare, healthcare, education, jobs and housing.
Before the war, the courts had frequently supported ‘the common-law freedoms of property owners against slum clearance, compulsory purchase policies, and new housing legislation’; after 1945, this fell away.1 Under the 1947 Town and Country Planning Act, private owners lost their right to build on their land without ‘planning permission’ from local authorities. But crucially, the state was also ‘a net acquirer of land’2 and ‘took the lead in promoting the building of new housing, on a historically unprecedented scale’.3
By the 1970s, over 30% of households lived in rented council houses. But ‘council estates’, once symbols of egalitarian optimism, were acquiring a reputation for decay. Many tenants, forbidden even from choosing the colour of their own front doors, were receptive to Margaret Thatcher’s argument that renting from the council was an oppression from which they should be emancipated.
State power in post-war Britain came to be seen as oppressive in other ways too, not least through the institutionalised disempowerment of women, children, ethnic minorities, gay people, the mentally unwell and the disabled. The power abuses that followed corroded trust in the state.
And overshadowing the period were the infinitely worse abuses of state power in Europe in the 1930s.
II. Power shift
The European Convention on Human Rights
After the war, a new international settlement was built to prevent any repeat of Nazi totalitarianism. This created institutions to entrench a new ‘rules-based’ international order, including the European Convention on Human Rights (ECHR) (1950) – backed, from 1959, by a court in Strasbourg with supranational authority – and the United Nations Refugee Convention (1951). No longer would domineering governments be free to abuse their power; never again would refugees from tyranny be turned away.
However, Attlee’s Labour government ratified the ECHR in 1951 reluctantly, treating it as non-binding. Ministers feared it would constrict their power to keep their promises. One objected that ‘a Government committed to the policy of a planned economy could not ratify the Covenant on Human Rights’.4 The Convention was influenced by Conservatives intent on using international human rights law to prevent Labour taking Britain towards totalitarianism.5 Only in 1966 did a later Labour prime minister, Harold Wilson, accept the European Court’s jurisdiction, giving plaintiffs the right, as a last resort, to go to Strasbourg.
Judicial review
In the mid-1960s, a broader turn against state power over society was underway, foreshadowing the 1980s turn against state power over the economy. Judges reasserted their right to hold the state accountable. This led to a revival of judicial review, which assesses whether a public body’s decisions are legal.
In part, this was a response to new liberalising laws which constrained the state’s power to forbid obscene publications, abortion and homosexuality.6 This individual-empowering turn was bolstered by the expansion of legal aid;7 in time, it extended to the right to access state welfare. All this chimed with the rise of ‘popular individualism’: a broad desire for ‘greater individual self-determination, and anger with the “establishment” for withholding it’.8
Regulation
By the 1980s, pressure for greater state accountability merged with a reimagining of public service users. They were no longer to be seen as deferential recipients, but as demanding customers with high standards, which they expected the state to enforce. This turn was strengthened by a greater cultural worry about risk. Power was pulled upward from local government and public service leaders to Whitehall, and dispersed sideways into the new ‘regulatory state’.
Planning
Similar shifts took place in housing. Thatcher’s government legislated to compel councils to accept their tenants’ ‘right to buy’ their council homes. Her drive to empower the individual against the state focused on economics, but like left-liberal campaigns which focused on society, she did this through a right.
In line with the aim of liberating citizens from council tenancy, local authorities were prohibited from spending the sale receipts to build new housing; much of the money went to reduce Whitehall borrowing. New housing would be built by the private sector.
III. Overextension
In the 1990s, in the UK and internationally, the rules-based order reached what now looks like it may have been its apotheosis. This put state power under increasing scrutiny and constraint.
The European Convention on Human Rights
Faced with the unavoidable tension between the state and individual rights, Labour had traditionally preferred the state, embracing the ‘potential for executive dominance through Crown-in-Parliament sovereignty’.9 Even in the late 1980s, the party’s Policy Review ‘rejected suggestions for a Bill of Rights on the grounds that it took power from parliament and gave it to unelected judges’.10 But this argument was weakened by repeated electoral defeats, and Thatcher’s wielding of the power of parliament against trade unions and left-wing councils. The rise of popular individualism made centralised executive dominance feel outdated, and drew attention to its propensity for abuse. Campaigners led by Charter 88 pressed for constitutional reform, including the incorporation of the ECHR into UK law.11
Under John Smith, Labour embraced this; in 1998, the Blair government fulfilled Smith’s commitment via the Human Rights Act. This meant that cases could now be brought on the basis of those rights in UK courts, which were required to ‘take account’ of ECHR judgments.
The ‘margin of appreciation’ doctrine gave states leeway to interpret the Convention differently, and the government insisted that ‘incorporation would not affect parliamentary sovereignty’. But the Act gave judges the power to declare domestic legislation incompatible with the ECHR, to which parliament would have to decide its response. The question was whether judicial power would ‘grow as the courts challenge the acts of the Executive and judicial review increases’.12 Peter Lilley, the former Conservative cabinet minister who now advocates withdrawal, asserts that ‘Of the 47 declarations of incompatibility so far, 35 have resulted in parliament amending the law’.13
The Convention’s framers did not anticipate the mass migration – regular and irregular – of the 1990s and beyond. Soon after the Act passed, asylum claims rose rapidly. This created new friction between New Labour’s liberal internationalism and its statist traditions. Tougher restrictions and deportation powers followed; Home Secretaries Jack Straw and David Blunkett found themselves fighting cases in Strasbourg. However critical their stances, this showed a willingness to engage with the Court as a means to settle disputes between individual rights and the public interest.
More recently, similar tensions have returned but with recent governments seeming much less prepared to argue their case. Straw has suggested that the ‘take account’ clause in the 1998 Act is now interpreted by courts as ‘follow’, a reading he did not anticipate when he oversaw its introduction. Similarly, some in government detect excessive civil service risk aversion to potential legal challenge based on Articles 3 and 8 of the Convention14, and contend that the current Attorney General’s guidance encourages this. Others attribute nervousness about such challenges to the decline in quality of advice provided by a beleaguered government legal service, or to risk aversion on the part of ministers. Whatever the cause, this marks a significant shift away from New Labour’s more robust approach.
Judicial review
The Human Rights Act expanded judicial review from focusing on whether public bodies had followed proper procedure to whether they had violated fundamental rights.
Applications for judicial review rose in the decade from 1998, mainly driven by immigration cases15, but the rate of applications granted permission fell;16 restrictions on access have been introduced since the early 2010s. The expansion of judicial review lies more in the range of state actions it can block.
Planning
By the 1990s, some conservative critics were regretting Thatcher’s termination of the local state’s power to build at scale. In 1995, Simon Jenkins wrote:
‘the building and letting of homes stood alongside education as one of the twin towers of local autonomy in Britain. They were symbols of the community’s role in determining the character of its neighbourhood and the welfare of its citizens. … it was on behalf of that community that they met their statutory obligations to house those homeless or in need.’17
Thatcher’s reforms shifted power to private interests. Under pressure from central government, councils sold land at scale to property companies, developers and financial institutions. As private rentiers gained power, private renters lost it, through the institutionalisation of insecurity of tenure.18
But shifting the job of building new homes from councils to developers also split power across public and private sectors, making rules central to the politics of housing. Councils’ main remaining power was withholding planning permission. The state weakened its power to build, but entrenched its power to block.
Regulation
From the 1990s onwards, there was ‘a systematic attempt by government to introduce business risk management practices across the public sector’. This introduced a ‘cost benefit analysis culture’, which moved away from ‘informal qualitatively based standard setting towards a more calculative and formalised approach.19This was applied most sternly to the post-war state’s public services, such that ‘the pressure on schools, hospitals and local government to deliver according to publicly stated performance indicators became irresistible’.20By the 2000s, the state and public bodies were under much closer oversight by formalised systems of quantification and rules. The fact that these systems appeared to be objective helped to normalise the implicit distrust of the state they embodied.
IV. Entrenchment
The European Convention on Human Rights
Defenders of the ECHR invoke its foundational fear of despotism: that without it, citizens would have no protection from ‘elective dictatorship’21 that in a crisis, ‘the common law cannot resist the will, however frightened and prejudiced it may be, of parliament’.22
These arguments draw on constitutional principles – the independence of the judiciary, the rule of law – which are self-evidently crucial to liberal democracy. But we should also accept that neither they nor the Convention can overcome democracy’s inherent vulnerability to elective dictatorship. A would-be dictatorial future government could simply leave the Convention and ask its MPs to pass an enabling act, granting it sweeping, autocratic power.
The Court clearly exists to protect high principle. However, as one former senior civil servant observes, it is political too. Underpinning it is a registry of officials who ‘negotiate with member states, over years sometimes, about how they implement judgements’. It is ‘a political set of processes with a court sitting atop it’.
A more pragmatic defence of the ECHR and accompanying post-war agreements accepts this, and stresses that leaving would damage the UK’s international standing and its ability to co-operate with other European states. In terms of power, the Convention has a strong record of protecting the interests of disempowered individuals and groups when the British state failed to do so. These include the Hillsborough victims’ families, survivors of rape and domestic abuse, and people denied psychiatric treatment while detained by the police under the Mental Health Act. It is therefore inaccurate to position the Convention as disempowering the ‘people’, given that it protects the rights of each of those people.
However, critics have a stronger case when they suggest that the Convention’s principles have been over-applied and exploited, to the point where a democratic government struggles to exercise its power in the interests of its citizens without constant challenge. It is also notable that while the UK’s human rights framework protects the individual against the power of the state per se, this is not always the case where the state has outsourced provision of services, such as care homes, where contractors’ human rights obligations are not always clear.
Judicial Review
The fear underpinning the case for judicial review is similar: that without it, there is no means to challenge the power of an over-dominant government.
Planning and regulation
Likewise, the planning system is predicated partly on the fear of abusive power, whether wielded by the state or developers. Alongside that, the ever-growing complexity of the regulatory state is underpinned by a long-established culture of risk aversion.
But this leaves both systems vulnerable to anyone who can find ways to exploit their complexity.
At the core of all of this is a deeply embedded distrust in politicians, parliament and government. So deeply embedded that some of those I spoke to for this paper suggest politicians themselves have internalised it. Ministers of any given government can be so chary of making difficult decisions that they are happy to outsource them to regulators or courts, or to blame such institutions for their own reluctance to make a choice or take a risk. As one former senior civil servant puts it: ‘I almost never heard the ECHR as a reason for why we can’t do anything until Brexit’ – the point at which blaming the EU ceased to be an option. Likewise, witness the over-readiness to call independent inquiries, and the unintended ‘metastasis’ of the ministerial code, which began as a guide to proper procedure published by the prime minister – and with the prime minister ultimately deciding what sanctions should follow from it – but has come to be seen as a quasi-legal document.23 While it is important to foster and enforce ministerial propriety, it is also important not to delegate this completely to unelected officials.
V. Public discontent
Whatever its constitutional wisdom, the constraining of the democratically run state has now gone a long way to disperse power and outsource responsibility beyond the reach of the voter. Systems of rights and rules that were created to constrain the state gradually became accountability sinks, precisely because they were separated from state power. Such systems also appeared to be thwarting politicians’ ability to keep their promises to voters.
Whether people believe politicians have really lost power to courts and regulators, or that they use them as an excuse to break promises, this corrodes trust in democratic politics. A system of constraints that was based on the idea that politicians cannot, finally, be trusted has ended up exacerbating that distrust to the point of crisis.
Intertwined with all this is the impression that while rules tightly restrict some people, others can break them without consequences.
The European Convention on Human Rights
The issue of irregular immigration crystallises these discontents because it appears to involve people breaking one set of rules to enter the country, then being protected by another set of rules which allow them to stay.
As the then Justice Secretary Shabana Mahmood told the Council of Europe in June 2025, ‘when the application of rights begins to feel out of step with common sense – when it conflicts with fairness or disrupts legitimate government action – trust begins to erode’.24
This thwarting of democratic government combines, she suggested, with ‘a growing perception’ that ‘the law too often protects those who break the rules, rather than those who follow them’. And that ‘when rules are broken with impunity, trust collapses – not just in states, but in the idea of democracy itself’. Governments, that is, are so constrained by rules that they cannot stop other people breaking them.
Mahmood cautioned that such perceptions are ‘sometimes mistaken, sometimes grounded in reality’. The public’s view of how power works in this regard is often dramatized through myths and misunderstandings. These range from tall tales of deportations thwarted because of cats, haircuts and chicken nuggets to the mistaken idea that leaving the ECHR would ‘stop the boats’.
Yet these stories are ‘grounded in reality’ in that they dramatize the real disempowerment involved in watching people break rules and then claim rights, and in watching politicians try to act, only to be thwarted. Witness the Home Office having to argue in summer 2025 that the human rights of migrants in Epping’s Bell Hotel overrode the concerns of protesting locals. Or the way that, having become Home Secretary, Mahmood soon found herself faced with attempted deportations under the government’s ‘one in, one out’ agreement with France blocked at the last minute by human rights claims.
Arguments against leaving the ECHR are often based on numbers, such as the point that in the last six years, only 2.5% of appeals – 645 cases – against deportation under Article 8 (respect for private and family life) have been successful25
What the argument from appeals statistics leaves out, though, is the cost to the state and the taxpayer of winning 25,800 appeals – the other 97.5% in the same period. Moreover, to look at this in artificial isolation, in terms of rules and numbers, excludes the way this issue resonates with other felt disempowerments – as the Home Office’s case in Epping shows – to produce a
real, if unquantifiable, crisis of political legitimacy. The high volume of appeals is another example of problems with implementation of government duties under the ECHR which can be tackled by a more assertive ministerial approach, without attacking the underlying principles.
The fact that these stories, and the public theory of power they appear to substantiate, are often mistaken is crucial – because they lead to unnecessarily extreme, self-defeating, solutions.
This points to the need for a fresh political settlement of the ECHR’s role in British politics. As two Labour MPs wrote recently, if progressives don’t lead a reform process, ‘it is likely to fall to the populist right with devastating consequences for those who believe in the underpinning principles of human
rights’ 26 Successful reform is essential precisely because those devastating consequences would hurt the most disempowered the most.
Judicial review
The Brexit referendum triggered a running battle between two contending visions of abusive power. One side detected an anti-democratic establishment cabal thwarting the will of the people. The other cast prime ministers as populist demagogues, determined to override the sovereignty of parliament.
The right to challenge government decisions through the courts became a significant factor in these battles. In ‘Miller 1’ (2016), the High Court ruled that the May government could not initiate the process of leaving the EU without parliament legislating first. In ‘Miller 2’ (2019), the Supreme Court declared the Johnson government’s prorogation of parliament illegal.
Both cases prompted accusations that judges were intruding on government policy, but the populist implications were tempered by the fact that both concerned attempts by the government’s opponents to defend the power of parliament. A promise in the Conservatives’ 2019 manifesto to ‘update the Human Rights Act’ and to ensure ‘that judicial review was not abused to conduct politics by another means or to create needless delays’ generated much concern in the legal profession, but the resulting Judicial Review and Courts Act 2022 was far milder than feared.
More broadly, however, the risk remains that what starts as a mechanism to ensure accountability ends up making accountability harder to achieve, precisely because it splits power between government and judiciary, and each can blame the other. Politicians can accuse judges of thwarting their efforts to act on behalf of the public; judges can accuse politicians of ignoring or misreading parliament’s own laws.
Planning and regulation
One area where judicial review – in conjunction with environmental regulation – continues to generate frustration is in planning. Campaigners argue that this process excludes consideration of human wellbeing. They point to cases such as the A47 Acle Straight, where the insistence on enforcing wildlife protections has prevented the dualling of a dangerous single-lane road – even after six deaths.27
Currently the Environment Agency, Natural England and Homes England all have powers of direction to local authorities to stop development.
A regulatory process drawn out through planning, environmental and judicial reviews and appeals often thwarts politicians trying to deliver their promises, while excluding challengers to larger businesses and providing plentiful work for consultants and lawyers. This has been exacerbated by cuts to the number of planning officers during austerity, a post-Covid era movement of planners away from councils towards better-paid jobs in the private sector (even as local authority workloads rose) and by government itself making planning regulations more complicated. Meanwhile, the post-1980s split in responsibility between councils and developers means that if a local authority deems a new housing development substandard, they often refuse to maintain its ‘roads, street lighting, drainage and communal areas’, leaving buyers stuck paying private management company fees.28
Housing Secretary Steve Reed has argued that the death of the dream of home ownership for young people is ‘part of what’s causing and driving a breakdown in trust and confidence in democracy’.29 More broadly, the failure to build enough homes comes together with high levels of immigration to drive further public discontent through (debunked) claims that local authorities prioritise migrants for social housing.30
VI. Government response
The public’s theory of power starts with real frustration and accurate information but ends up heading, with the help of myth, misinformation and extremist goading, towards unnecessarily extreme measures. So how might genuine frustration be channelled towards genuine solutions?
The European Convention on Human Rights
The government has proposed reforming the way the ECHR applies in the UK. As Akiko Hart, Director of Liberty, noted while this was in process, such a review is one of ‘only two real options for reforming the Convention’; the other is ‘going to Strasbourg to urge them to restore trust’.’ This would involve winning the support of all other signatory nations. There is broad appetite for reform across Europe, but this would take a long time, when ‘there is relentless public
pressure for fast, decisive action on migration’. 31
Domestically, the government can move more swiftly. The Attorney General Lord Hermer has emphasised that it is legitimate to examine whether Article 8 is ‘being misapplied by case workers or first-tier tribunals’, and to be ‘proactive, if it is, in trying to correct that’.32 The Home Office is now proposing to limit Article 8 claims through legislation on three grounds. First, strengthening the public interest test (with a focus on ‘maintaining effective immigration control, safeguarding our communities from foreign national offenders, promoting economic prosperity, and mitigating pressures on stretched public services’). Second, largely limiting the definition of ‘family life’ to immediate family members. And third, clarifying application routes to prevent the use of late human rights claims to frustrate removal. The ‘current loophole that allows failed asylum seekers to make unlimited and free Article 8 claims’ will be closed.33
The other primary focus of concern about the ECHR is Article 3 (prohibition of torture, inhuman and degrading treatment), which critics argue ‘has been used to block safe third country returns’.34 Here, the government is working with partner countries to address the gradual expansion of the interpretation of ‘inhuman or degrading treatment’, which it attests has allowed foreigners who have committed serious crimes to remain in the UK. In doing so, the government is seeking to address concerns that over-interpretation limits countries’ ‘ability to make sovereign decisions on migration’.35
This leaves the question of whether the government can address the way the UN Refugee Convention currently operates. FGF has proposed a new ‘Implementation Protocol’,36 to be created under Article 45 of the Convention, which would underpin a new approach to processing asylum claims: making it possible to initiate a claim before reaching the UK border. This would reduce the incentive to make dangerous journeys, and could be matched with restrictions to access to asylum at the border itself.
In tandem with addressing the excessive restrictions that overinterpretation and spurious claims place on their ability to act in the public interest, ministers should remake the case for fundamental human rights as a protection against the abuse of power. They should also face down Whitehall’s fear of fighting cases in the European Court, as part of a broader pushback against excessive risk aversion with regard to litigation. Trying to avoid going to Strasbourg at all costs not only places needlessly tight limits on state action; if the government believes in the legitimacy of the Court, it should be unafraid to appear before it to make its case.
This reform process sits in the broader context of our current democratic crisis. As ongoing events in the United States demonstrate, legal rights can hold back authoritarian governments, but only to a limited degree. History suggests that the most effective response to the rise of extremist, autocratic forces is to treat it as an urgent warning: a spur to democratic politics to free itself of outdated fears, and act quickly and decisively improve voters’ lives, removing the democratic appeal of such forces before they can win office. Human rights law can then continue its important role in protecting individuals from the abuse of power.
Judicial review, planning and regulation
The Labour government has recognised the need to address the excessive reliance on rules. As education minister Georgia Gould wrote recently, ‘Colleagues are examining every rule and control and developing fewer but better rules’.37
The government has introduced various measures in pursuit of its promise to see 1.5 million homes built by 2029. These are framed as assertions of central government power to face down ‘vested interests’ and ‘blockers’:38
- The revised National Planning Policy Framework, which radically strengthens presumptions in favour of new development, particularly near transport stops;
- The Planning and Infrastructure Bill, designed to speed up planning decisions on housebuilding and infrastructure;
- Empowering councils to require developers to commit to a timeframe for completing housebuilding projects prior to the granting of planning permission, and to fine, and refuse further permission to, developers who breach such agreements;
- £46 million to recruit and train 300 junior planning officers – supplemented by a further £48 million at Budget 2025 to recruit 350 more and create a new Planning Careers Hub;
- £600 million to train construction workers;
- £39 billion over a decade for a new Social and Affordable Homes programme, expected to deliver 180,000 new social rent homes, with enhanced powers for mayors outside London over spending decisions;
- £800 million extra funding for the existing affordable homes programme; and
- A new Renters’ Rights Act, which shifts power from landlords to tenants.
The government has also committed to building a series of new towns, to expanding airports and developing an Oxford-Cambridge corridor, and to a second planning reform bill designed to ease the building of new infrastructure by scrapping regulations derived from the EU Habitats Directive, and further restricting the number of permissible applications for judicial review from three to two, or one.
The businessman and ex-second permanent secretary to the Treasury, Sir John Kingman, has suggested the government go further by appointing a ‘warrior’ to lead the battle in Whitehall ‘to rein in the courts and the scope to exploit them through endless judicial review’, and to cut the number of regulatory staff, rather than merging regulatory organisations.39 There are indications that the new ministerial team at the Ministry of Housing intends to address criticisms of the Building Safety Regulator, as does its new chief. The CEO of Taylor Wimpey has called for the Environment Agency, Natural England and Homes England to align themselves with the government’s 1.5 million homes goal, given their powers to direct local authorities to block development.
More radically, the government could create state-owned enterprises, perhaps adopting the approach in the Netherlands, where self-funding public corporations build infrastructure more effectively than in the UK.40 Applied to housing, this approach could encourage competition, even out market cycles and maintain capacity in the construction industry.
Kingman also advocates giving city mayors ‘much more heavy-duty planning powers (including complete freedom from Whitehall second-guessing)’.41
Others suggest turning the housing ministry into a task force, convening regular meetings with developers, utility companies and local authorities to identify and remove blockages. The former Labour minister Andrew Adonis argues that the answer is for ministers to make bolder use of their powers. If advised that a decision risks triggering judicial review, as he recalled happening three times in the first eighteen months of New Labour’s academies programme, they should declare they are ‘going to proceed anyway’.42
However, the former regulatory economist Dan Davies has outlined a different theory of how power works in this field, setting it in the context of the broad trend traced in this chapter. He argues that the problem lies at a deeper level: with the adversarial, low-trust, process-based character of the system, of which judicial review has become an integral part. The whole process generates uncertainty and ‘pre-emptive risk aversion’. This is exacerbated by consultants and lawyers, and by ‘rights derived from international treaties’43, including the ECHR. Environmental regulation will always be open to exploitation, but it is impossible to stop this without disempowering people who have a reasonable case.
Davies argues instead for a more co-operative, less process-bound system. Making the first stage of the process ‘quasi-judicial’ means that judicial review ‘tends to replicate the whole thing’, whereas ‘if the planning authority works in a collaborative fashion with two-way communication, there is much less scope to do so’.44 Instead of seeing consultation as an obstacle, ‘it ought to be part of the design process’.45
This critique points to a broader dilemma confronting moves to escape the constrictions imposed by well-meaning systems of rules. To what extent can we recover non-abusive ways to make government action effective that depend less on process, law and regulation and more on trust? And to what extent does this rebalancing simply demand an uncompromising assertion of state power?
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