Imagine you are on the board of large corporation. You attend the Annual General Meeting and asked the chief executive about that controversial tax avoidance scheme the company had been considering, but which the in-house legal team had advised against. The Chief Exec smiles and says that has been dealt with: “we just sacked the lawyers”.
The BBC is reporting what many suspected. Attorney General Dominic Grieve QC was sacked in order to clear the path for major reform of the relationship between the UK and the European Court of Human Rights. This is bad news, for the UK and potentially for the European Court of Human Rights too.
The Attorney General’s advice, which has been leaked to the BBC, was that plan to limit the power of the European Court of Human Rights were “incoherent” and a “legal car crash… with a built-in time delay“. Intriguingly, the BBC’s Nick Robinson also reports that William Hague, the now-former Foreign Secretary, also raised doubts over the plans.
We do not yet know what the Tory plans are, but it can probably be assumed that they fall short of leaving the European Convention on Human Rights (ECHR), but attempt to give Parliament more discretion to ignore its rulings. Grieve, the Government’s chief legal adviser, would have advised that the ECHR does not permit states to cherry pick what judgments it wants to follow. The treaty is very clear: Article 46 says that states must “abide by the final judgment of the Court in any case to which they are parties“. No ifs, no buts.
This is unsurprising. There has been a war going on within the Tory Party over human rights since May 2010. Until now, there has been a range of views within the cabinet: crudely, Clarke, Grieve and (we now know) Hague on the “pro” side, May, Grayling and probably Cameron on the “anti” side. Now the “pro” camp has been expelled, replaced by (respectively) nobody, the inexperienced barrister-MP Jeremy Wright and Euro-scpetic Philip Hammond.
Until now, it was a cold war. The 2010 Coalition Agreement scuppered any hopes of reducing the influence of the European Convention on Human Rights. It was instead agreed to “investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights“. That Commission reported in late 2012 but essentially reached a stalemate and has been ignored.
As the 2015 General Election approaches, the war over human rights is hotting up again, and the Conservatives will again promise to repeal the Human Rights Act if it wins a majority as well as, it seems, “doing something” about the ECHR.
We may all yet be surprised by a mature and coherent set of plans for the ECHR. But assuming that we are in fact presented instead with the legal “car crash” which Dominic Grieve warned of, I have three points.
First, the Attorney General is the Government’s principal legal advisor. After Chris Grayling became the first non-lawyer Lord Chancellor for centuries, Grieve’s position became even more pivotal. Politics are important but so is the rule of law. Grieve stood up for it, in so much as he could in an increasingly hostile environment, and has been sacked.
A lawyer’s responsibility is to give their client full and fearless advice, even where it might undermine your personal position. The fact that Grieve has been sacked is unfortunately a testament to him giving unwelcome, not bad, advice, and his refusal to wrap plans which would lead to a breach of the UK’s international law obligations in a cloak of legality. Good for him.
There is a wider theme here: a general diminishing of respect for the rule of law within the executive. I discussed the trend in more detail here, but this Government’s “mood music” around Judicial Review, legal aid and human rights has sounded increasingly gloomy. Grieve’s sacking raises the possibility that there is no one left in Cabinet to make a strong counter-argument.
Second, Grieve was obviously right to advise that attempting to cherry pick which judgments we like and which we don’t was never going to be a legally defensible approach. That has been the advice of every decent lawyer and judge all along. If you don’t like the judgments, withdraw from the Convention. Otherwise, accept you (the state) lost and get on with implementation.
For a good summary of this position, see the Supreme Court in Chester, or the report of the Parliamentary Joint Committee on the prisoner voting bill, which couldn’t be clearer about the “grave implications of a refusal to comply with the Court’s judgment for the UK’s relationship with the Court and for the future of the entire Convention system”. A refusal to implement the Court’s judgment, which is binding under international law, would “not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow“. Quite so.
Finally, distaste for inconvenient legal advice will not just affect human rights. The Government needs good legal advice to build a successful and sustainable legislative agenda. Lawyers don’t have all the answers, but if the executive ignores legal advice for short term political gain, in the long term it is the country which will be the real victim of this slow motion car crash.
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