The Tory human rights “car crash”
17 July 2014
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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What these politicians do not seems to understand that with power comes responsibility if the government continues to pick & choose which laws it obeys then the citizen may decide to pick & choose which laws it obeys & in court the government have set the precedent,you either respect the law & obey it or you lose it
Leaving aside the arguments of other commentators, the sacking of Grieve and the appointment of a minimally experienced junior barrister as Attorney general is exceptionally worrying. Indeed, if the man had any modesty, he would have declined the offer on the basis of his inexperience. The new Solicitor General is much more experienced.
The AG’s legal opinion (whether reached with or without consultation with other lawyers) is crucial to many government actions including the decision to embark on certain military adventures etc. It is likely to need a very strong AG to deal with some of the questions that will arise if Scotland votes for independence.
A further point is that the AG is Head of the Bar. I have always thought this rather odd given the Bar’s independence but it is based on historical practice. It may well be time for the Bar to reconsider this arrangement.
Combining the changes to the Law Officers with the continuation in post of a non-legally qualified SS for Justice / Lord Chancellor is even more unsatisfactory for the rule of law.
Sadly, there are almost no votes in these matters so few care outside of the law and government.
I can’t help but think that the professionals are barking up the wrong tree with these arguments.
The A-G’s job is to furnish the government of the day with the best legal advice possible, end of. In some ways I think it is better that the incumbent isn’t a brilliant lawyer in his own right as there is always the temptation to rely on your own intellect rather than seeking the best advice wherever it may be.
On the Head of the Bar point, I cannot think of any of our kin that actually regards the A-G as his or her leader; or many that see his role as fundamental to the Bar’s independence (the words “legal aid” are on many of our colleagues lips) – so stripping the current incumbent of what is, on the whole, a ceremonial role seems both churlish and spiteful.
I see the point but I think a good A-G is a very good lawyer who is intellectually able enough to advise properly and challenge legal advice given by others. S/he must also be able to explain the legal position in relation to policy within Cabinet.
“intellectually able enough” – Anyone who has entered the independent Bar in the last 10 years will crack a wry smile at this comment. The intellectual challenge in obtaining a pupillage furthermore a tenancy has exceeded such low brow idioms as skimming the cream from the top and we’ve now literally entered the scientific age where at a molecular level we’re examining the C3H6O3. The chap is no fool. The appointment of an A-G is not a competition where an applicant is selected with merit being the primary consideration. It is a political one. So the collective gasps from the profession, while inevitable are misguided, and the new A-G’s qualifications are no indicator of future performance.
One last point, when commentators say that the A-G must “explain the legal position in relation to policy” – Do they know what this means in today’s political culture? The average length of a Cabinet Meeting is 30 minutes. The current cabinet has 33 attendees. Within this framework, the idea of an A-G that carries out his role “on the hoof” is dead. His or her job within the meeting is to identify issues that he will report back to colleagues at a later time. The *real* job is cultivating an environment in his department where his officials are expeditionary and know everything that is going on across Whitehall so that potential issues are spotted early and his *advice* is built in broadly at an early stage.
The ECHR may not be perfect but it does strive to enshrine basic human rights in each countries law. Thereby taking Human Rights out of the hands of self interested politicians who only look to todays’ sound bite and winning the next election. It should be self evident by now if that means trampling rights we have had since Magna Carta into the ground, it is a price they are willing for US to pay.
Try and think about it from Cameron’s perspective (ie not a lawyer’s).
Prior to 1998 we had no HRA. Nobody suggested we’d be thrown out of the Council of Europe if we didn’t enact it. So, why not just repeal it and replace it with something meaningless like an (unenforceable) UK Bill of Rights.
That could be done, and I doubt we’d be thrown out of the Council of Europe for that.
The UK would still be sued and lose before the ECtHR, but no change there. The UK would be placed in violation of art 13 (effective remedy) because Convention Rights would not be enforceable in the UK, but that was true prior to 98 as well.
(Notice in passing that the lazy and foolish claim that the ECHR simply reflects the British constitutional position anyway was why the HRA was initially thought unnecessary. this was never true, the Convention is simply not based on UK law at all.)
The heavens would not fall.
If the Tories won a majority, I suspect something like that is what we would get. the only other option is withdrawal from the Convention (we can’t just withdraw from the Court’s jurisdiction).
All because of Hirst, a decision which was wrong and that there is no mechanism for overruling.
Even if Labour win, I doubt that any government will be able to enact legislation giving (some) prisoners the vote, and so we’ll be in constant violation of the Convention in any event.
Regrettably, this is just nonsense passing itself off as “political strategy”.
For your “heavens would not fall” gambit, I counter with a Ireland v United Kingdom [1978] sandwiched between a McCann and Ors v United Kingdom [1995].
Thatcher was forced by the adverse ruling to abolish the “five techniques” accept individual right of petition and comply with adverse rulings – which was consolidated by Major’s (what is it with Conservative PMs and the European Court of Human Rights?) capitulation and continued compliance after McCann.
You see there are no votes to be won in being called – internationally – a human rights abuser regardless of what your back benchers may think.
For every Hirst (where the public may be on your side) there is Al-Skeini (where the public won’t be) where it will be a European Court, rather than merely a House of Lords (or latterly, Supreme Court) telling the executive that a practice they introduced or endorsed is illegal and may constitute a human rights violation and due to our intransigence in removing ourselves from the courts jurisidiction, each infraction becomes an even larger media and political earthquake.
That is, until the government returns to its pre 1998 position which rather feebly was put up and shut up (nodding dog compliance with everything as soon as poss). Unless it pushes the nuclear button and withdraws from the whole thing (a suicidal move if ever I saw one).
On Hirst, I think we’ll agree to disagree (putting in place a compliant scheme is so easy its laughable only intransigence keeps us in breach).
On Labour, I expect they’ve learned Obama’s Gitmo lesson and will do it as soon as they enter Govt. With fixed terms, it’ll be forgotten by 2020, they should take the pain and move on.
I am not sure you have understood me. Personally, I think the HRA should be retained, we should remain in the ECHR and bad as I think the decision in Hirst was, we should comply with it.
My post wasn’t about these things, but about what the Tory’s viable options are. Returning to the pre-98 position (coupled with a laughable ‘British Bill of Rights’) is viable. It isn’t what I would do, I think it is daft, but it is clearly do-able.
Here is the Tory right’s view
http://blogs.telegraph.co.uk/news/danielhannan/100280522/we-cant-be-half-in-the-echr-we-should-leave-cleanly/
Unpleasant as it may be, it is that which Cameron is going to try and resist. I don’t think it likely the Tories will win a majority at the next election, but I do think it likely they will at some point in the future (2020?) win a majority. And at that point the HRA will be repealed, or even worse we will leave the ECHR.
A majority of those expressing a view think we should leave the ECHR
http://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/hoo8xx6ejm/TimesResults_140716_cabinet_reshuffle_W.pdf
A large majority of Tories.(65%, 22% with 14% DKs)
As for prisoner voting, I don’t agree on either the law or the politics. if we accept that some people who commit crimes can be legitimately denied the vote, why the line as to who can and cannot vote cannot be the same as the line that determines the (minority of) criminals who have crimes meriting custodial sentences is a complete mystery, unexplained by the ECtHR. They cocked up. Mainly because the judges on that court just aren’t very good in the main.
I am a lawyer, not a human rights lawyer specifically, but I am always shocked at how poor ECtHR judgements are.
Any human rights court that concludes that denying prisoners the vote is outside the margin of appreciation, but that you can ban anyone from wearing religious clothing on the basis of ‘social cohesion’ (ie not upsetting other people) has seriously lost its way.
On the politics, you are making the common mistake of thinking that the Labour party is in some way a ‘liberal’ party. Blunkett should have disabused you of that. Labour policy is just as clear as the Tories: they oppose votes for prisoners regardless of what the ECtHR says. Lots of links, but here is one
: http://www.labour.org.uk/prisoners-should-not-be-given-the-vote
I find it interesting that you describe Daniel Hannan as the voice of the ‘Tory Right’ and the view that Cameron needs to face down. I disagree. Hannan is one of the “all of Europe out of all of our lives” politicians and that view is hardly mainstream (I think mainstream Tories call them the “goggle-eyed loons”).
Cameron’s problem is the traditional one that most PMs and executives face, namely that of control. Seek to minimise your domestic judiciary from acting as a barrier to policy. Absolutely, under no circumstances be overuled by the international judiciary. Look like you are in control at all times. Simple maxims for PMs to live by.
Both Cameron (and the judiciary in this country, for that matter) are keen to convince the European court that context is everything and that sometimes local knowledge makes decisions that look odd internationally have their own internal logic. The funny thing is, the message is getting through and the Courts in England and Wales and Strasbourg are now “in dialogue”. Even more interestingly, the domestic courts themselves are leaning less on the jurisprudence of Strasbourg and more on the common law to support their decisions (most recently PLP v SofS for Justice [2014]). So, at least from the outside, everyone is working (together?) to fix the optical problem
That’s why Hannan’s article is well timed. He knows politically that this optical problem has every chance of receding so he must make hay now. If as you say the Tories best chance of a majority is 2020 and beyond that will be far too late.
The ECHR remains a strait-jacket within which the ability to reform UK’s human rights legislation is severely restricted. In order to create a UK Bill of Human Rights I can see no alternative but to leave the ECHR. Hopefully a UK Bill will be more coherent than the hodge-podge of legislation that has come out of Strasbourg. Not least I would like to see a distinction between ‘human rights’, which are inalienable, and ‘civil rights; which are granted by the state & which can be withdrawn, eg prisoner voting rights,
Firstly, the “strait jacket” argument is much used and very rarely supported by any evidence. There is no bar to amending the Human Rights Act save the party proposing the amendment having sufficient MPs and Peers to agree the changes in Parliament. When people talk about ECHR being a straitjacket they are reframing the classic conflict between the judiciary and the executive in european constitutional terms.
Secondly, a UK Bill of rights will not be more coherent. Regardless of the nationality of the draftsman, most (if not all) human rights documents are drafted in broad terms and these prinicples are applied by judges to specific cases. The idea that because it is a UK Bill of Rights suddenly judges and politicians will suddenly see eye to eye on all issues is fanciful.
Lastly, the ECHR already makes a distinction between absolute and qualified rights (which I expect is what you’re getting at when you mention alienable and inalienble rights). The issue here is that the executive is trying to expand its sphere of influence into the realms of the judicial by seeking to take powers to assess and determine what cases the court can hear and providing guidance on how decisions should be rememdied (there are even suggestions that Parliament should tell the court precisely how specific cases should be decided).
For many this is not a case of being pro-european or anti-european or pro/anti human rights but simply a matter of a government playing by the rules (or what lawyers might term acting in accordance with the rule of law). For me, all a UK Bill of Rights would achieve is transforming the UK Supreme Court into the bogey man rather than the European Court. That document will then become the focus of all the rage rather than the convention, but the conflicts will (sadly) still remain.