Monday, 20 October 2014

Britain and the European Court of Human Rights: another lorryload of 'promises' that will never be kept

All governments suffer setbacks, make huge mistakes, and drop huge clangers. It's a fact of life. It's comforting, actually, that our apparent masters are just like us: badly organised, uncertain, exhausted and confused.

But this administration's making dropping bricks into an art form. Everything it touches seems to turn to dust. Universal credit? A total catastrophe from start to finish - to the extent that it even exists. Workplace benefits? In chaos. Macroeconomic policy? Every single debt and credit target missed. Every single one, accompanied only by Ministers covering their ears and shouting 'la, la, la, sticking to Plan A'. Which they haven't. The National Health Service? Brought low by a totally unnecessary and confused reorganisation imposed from the top. And don't get us started on the disastrous and counter-productive badger cull - a particular hobby horse of 'Public Policy and the Past' over the years.

Now it's onto the European Court of Human Rights (above), long derided by right-wing commentators as a storehouse of judicial aggression and attacks on Britain's sovereignty. The Conservative parts of the Government want to wrest back the power to veto its decisions, and (if that doesn't work) to withdraw altogether. You can leave aside the accepted fact that most of the cases now cited as making the Court vexacious to us Brits are total fabrications or misrepresentations. The famous case of the man who couldn't be deported because he loved his cat too much was just made up. Conservative proposals for a Britain-only Bill of Rights would do nothing at all to affect prisoners' 'right' to vote, whatever one thinks of the rights and wrongs of that particular issue. If you don't believe me, you can look at a laywers' full-on critique of the Conservatives' much-derided policy document here.

No. The lies aren't the real tragedy here. That's two-fold: first, the betrayal of a great Conservative tradition, one identified with Winston Churchill himself, and one which has helped to spread peace and liberty across our continent; and, second, the sheer tawdriness and poor drafting of these proposals themselves, even taken on their own terms. In just the same way that the badger cull is a disaster even assuming that badgers spread tuberculosis to cattle (you knew that'd appear somewhere below the headlines, didn't you?), ECHR 'reform' won't do anything that the Conservatives say it will.

Well, first things first. The reason many sensible Conservatives such as Kenneth Clarke and Dominic Grieve are very worried about these ideas is that they are attacks on truly Conservative concepts - the rule of law, the limitation of the state's influence, the division of powers. It was a Conservative lawyer, David Maxwell Fyfe, who played one of the key roles in drafting the Convention in the first place - partly because he wanted to constrain the march of socialism, and the threat of arbitrary government, at home. The Convention's concepts - that everyone has the right to a domestic life, to freedom of religion, to security of the person against the authorities - have ever since been associated with the proudest boasts of the Conservative Party (opens as PDF). That it defends liberty. That is believes in the self. That it opposes arbitrary government. Like them or loathe them, those concepts matter. The Conservatives seem happy to trash their own brand (again), but in so doing they are also besmirching a certain idea of Britishness too.

Now let's move on to tragedy number two: poor drafting and sloppy thinking. The actual policy paper that civil servants are now going to be asked to work on seems to have been written by a hungover A-Level intern. Nothing in it makes any sense, especially when you stand back and look at the farcically error-strewn document as a whole. It's too vague to mean anything beyond a single press headline: 'we don't like Europe much'. The next thing you know, Whitehall officials will be despatched to check whether bears really do defecate in wooded areas.

Here's just some random thoughts that the Conservative staffers seem not to have thought of: there can be no 'pick and choose' approach to the ECHR (this is a link to a Labour Party press release, which we wouldn't usually use, but it is a legal opinion issued by QCs). Either you're in, or you're out. The 'veto' idea is impossible and unworkable, because if you sign, you sign. If the UK does intend to pass legislation giving British courts the so-called 'power' to take account of British laws 'above' the European Convention, that will cause legal chaos as they have to go line-by-line through statute that both is and is not binding - a kind of Schrodinger's Law that could never work. We could go on forever, really.

The Conservative policy paper also asserts that 'British courts' will now make the final decision, not the European ones. Er, no. Wrong again. Only if you leave altogether. Otherwise, the Court will go on judging and making decisions, which will then be enforced in British law whatever statute you've passed to try to mitigate that standing fact. If partisan staffers weren't so busy posturing (and bullying civil servants into writing up some more of this nonsense), they'd admit that straight away. If we do go down this path, the UK will have to leave the Conventional altogether, while still being forced to recognise all the chunks of the Convention that are encoded into international law - and still having all these ideas and precedents read and effected by British judges more keenly aware of their European colleagues' than a bunch of mere Ministers.

And here's the next flaw: ECHR clearance is built into the Scottish devolution legislation and the laws that undergirdle the Northern Ireland peace process. Given that the Westminster leaders' recent 'vow' to Scotland involves making the Holyrood Parliament permanent, are they going to legislate to completely change its constitutional status? Do they want to unpick the fragile peace at Stormont as well, especially at a time when the power-sharing executive is struggling to deal with the cuts it's been asked to make? Are they hell. So Scotland and Northern Ireland can't and won't be covered by such reform. Any cases that sprawl across those intra-UK boundaries? Welcome to your worst legal nightmare.

Honestly. The UK is full of legal and constitutional academics - not to mention whole tribes of lawyers - who are now used to dark laughter at everything that comes out of the Ministry of Justice. It's either that, or the crying - which is what it might come to in the end. It's just increasingly apparent that an ever-more-unhappy MoJ (introduced recently by Private Eye as 'a nest of mendacious backstabbers') is headed rapidly downhill given its budget and staffing cuts - and the unpopular, blinkered leadership of a deeply disliked Secretary of State.

Leave aside the rights and wrongs of the case. British courts are probably capable of holding Ministers to account. The British legal system is robust. If we were starting from Year Zero, a supranational convention might not be necessary. But look at things as a historian does - as moving forward in time, and increasingly encrusted with the residue of commitment and events, as well as mired in complexity. Then you can see that the harm to Britain's reputation, and the legal neutron bomb that we would be unleashing on ourselves, just makes this proposal totally counter-productive.

It's just like the Govenrment's public spending 'plans', which reside in a similarly fantastical non-space, and must cause sleepless nights for Treasury civil servants who might actually have to implement some of them. European Court of Human Rights 'reform' will never happen. Conservative Ministers will say 'sorry, we don't have the majority for that', or 'the Liberal Democrats won't let us do that'. Then they'll breathe a sigh of relief and retire to bed, their sleep ruffled only by the nightmare that they might actually have to implement all the crazy policies that they're now signed up to.