The Conservative Party is going to get itself in a terrible mess over the Human Rights Act. As David Cameron will soon discover, changing the lawyer is not going to solve the problem. Now is the time for clarity without looking through the prism of party advantage.
Firstly, a non political saunter through the law. In 1959 Britain and 46 other European States signed up the the European Convention of Human Rights. Article 46 says that governments, must abide by final decisions of the Court. The UK Parliament freely bound itself to this.
In 1998 the UK Parliament passed the Human Rights Act. It chose its words in section 2 (1)(a) very carefully, that our courts must take into account any judgement, decision, declaration or advisory opinion of the EHCR.
They are not bound to follow, nor can they ignore.
And here’s the problem, our courts are not obliged to obey decisions but our Parliament is.
Now back to basics. The EHCR was set up to prevent the appalling abuses of Nazi Germany infecting the continent of Europe again. It provides basic human rights which would be no different to if we drew up our own British Human Rights Bill. This is not surprising as it was the Brits who drafted it after the Nuremberg trials, in particular David Maxwell Fife who became a rather illiberal Conservative Home Secretary. History sometimes has a sense of irony.
The trouble is that the EHCR was never intended to be the final court of Appeal for its member states. It was designed to prevent governments oppressing its peoples. It seems to have departed from these sensible principles and has become a megaphone for political interference in countries where there is no democratic deficit. The classic case is votes for prisoners, something which should be a matter for sovereign Parliaments alone.
So how do we sort out the seemingly contradictory laws which says on the one hand Parliament is bound by ECHR decisions whilst our courts are not? Whatever advice any Attorney General gives is not going to be believed. If Jeremy Wright makes an unlikely volte face he will be accused of being a right wing stooge. If he follows the line of Dominic Grieve the right will accuse him of being a Europhile.
It is worth reminding ourselves what advice Grieve has been giving. It is simply the law. Irritating as the EHCR can be, if we pulled out it would make it very difficult for us to remain in the EU, because of the European Court in Luxembourg. This court ensures that member states of the EU obeys the Treaty of Rome and all subsidiary treaties. It may find itself trying to enforce EHCR decisions on non convention members. If we disobey that lot we would be obliged to leave the EU.
This analysis is purely legal and it is the advice that will be given by the the commission set up to investigate this. I am trying to avoid the fetid politics and all talk about Britain’s obligation to obey the rule of law. Those are arguments for another post.
If ever there is a case for taking the politics out of a dilemma it is this one. Politicians in the run up to general elections have a habit of doing silly things for party advantage. There is a legal way round this. A few months ago the then Lord Chief Justice Igor Judge, alluded to these problems and suggested that the Supreme Court should wrestle with the two seemingly conflicting positions. He is right. Judges don’t run for election. They are trusted. They are above party politics. A ruling from them on a point of such vital constitutional importance will lead the way forward for political decisions. Good heavens we might even have a Cabinet decision which has been properly thought through!
Personally, I am all in favour of our Supreme Court being the ultimate court of Appeal. They are experienced in politely telling the EHCR when they are wrong. Let them decide. Let them give guidance to Parliament which at least will be independent. At the moment there is too much political testosterone and subpoena envy. And too much talk of rushing out ill flaky promises in party manifestos.
