Features

Michael Gove vs the lawyers - his toughest fight yet

The Justice Secretary's new mission makes education reform look like child's play

23 May 2015

9:00 AM

23 May 2015

9:00 AM

They have taken to calling themselves the ‘Runnymede Tories’: those Conservative MPs who, knowing that David Cameron has a majority of just 12, want to sabotage his manifesto commitment to end the direct jurisdiction of the European Court of Human Rights in Britain.

Well, sorry chaps, but that name is taken. The actual Runnymede Tories — that is, the Conservatives elected to Runnymede Borough Council — will be gathering next month on the bank of the Thames to celebrate the anniversary of Magna Carta. They — we, I should say, since I’m closely involved with the project — will be unveiling a large bronze statue of the Queen, symbolising both 800 years of the Crown’s acceptance of the rule of law and the fact that the principles of Magna Carta have been disseminated, during the present monarch’s reign, across many continents and archipelagos.

The statue will be unveiled by the Speaker of the House of Commons because, in this country, constitutional freedom has always been bound up with parliamentary supremacy. Magna Carta, uniquely in its time, contained its own enforcement mechanism. Instead of leaving future sovereigns to interpret its provisions, it created a form of conciliar government which evolved directly into the Parliament that meets at Westminster today.

Next week, the flesh-and-blood Queen will come before that Parliament to unveil her government’s programme. Among other things, she will announce its intention to scrap the Human Rights Act, which gives direct effect to the rulings of the Strasbourg court in Britain. An unprecedented Kultur-kampf will follow. The new Justice Secretary, Michael Gove, will call forces into the field against him that make the educationalists who opposed him before look like primary school children.

The origins of the row go back to 1998, when Tony Blair decided to place the European Court of Human Rights at the apex of the British legal system. Since then, we have had a stream of controversial rulings: suspected terrorists escaping extradition, illegal migrants evading repatriation, prisoners demanding the vote. The case against the ECHR is well-rehearsed: it cheapens democracy by allowing jurists to advance an agenda that would be rejected at the ballot box.

But what is the case for it? To what problem was the 1998 Human Rights Act supposed to be a solution? Were British citizens being routinely expropriated, or interned in camps, or forcibly transferred to remote exile? In truth, there was no crisis in civil freedoms; but there was a crisis in democratic legitimacy, which Tony Blair’s legislation exacerbated.

As powers shifted from MPs to judges, the gap between rulers and ruled widened. Many of the grumbles that people have about the ECHR — the sense, above all, that it rewards scoundrels and punishes honest citizens — derive from the tendency of British and European judges to stretch the Convention far beyond what most of us regard as the plain meaning of its words.

Abu Qatada, for example, managed to fend off repatriation to Jordan for years despite having entered the UK illegally with forged papers. He was able to do so not because there was any danger of his facing torture there, but because some of the evidence against him may have been derived by torture. The Afghan hijackers who arrived after diverting a flight to Stansted at gunpoint are still in Britain, living on benefits, despite the best attempts of four successive home secretaries to remove them.

Then there are the less high-profile cases that may not be so familiar to cerebral Spectator readers, but which have dominated tabloid front pages, such as that of the Libyan alcoholic with 78 convictions who has escaped deportation because the selling of alcohol is largely banned in Libya. I think it’s fair to say that this is not what the authors of the Convention had in mind when they prohibited ‘inhuman or degrading treatment or punishment’.

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Michael Gove’s argument is not that the Euro-judges are always wrong. It’s that they are engaging in judicial activism. Consider the row over whether prisoners should have the vote. Whatever view you take — and, to be honest, it’s not a question that especially exercises me — it’s surely a political rather than a judicial issue. Some prisoners can vote now (those on remand, for example) while, even under the ECRH’s proposal, serious felons would remain disenfranchised. So all we’re arguing about is precisely where to draw the line. How is that a question of fundamental human rights rather than of policy?

Judicial activism is far older than the ECHR, of course. In 1717, Bishop Hoadly told George I, ‘Whoever hath an absolute authority to interpret written or spoken laws, it is he who is truly the lawgiver to all intents and purposes, and not the person who wrote or spake them.’ But the 1998 legislation has given judges far more scope to ignore what the law says in favour of what they think the law ought to say.

They’re quite brazen about it. Listen to the current British judge on the ECHR, a lifelong Eurocrat called Paul Mahoney: ‘The open textured language and the structure of the Convention leave the Court significant opportunities for choice in interpretation. In exercising that choice, particularly when faced with changed circumstances and attitudes in society, the Court makes new law.’

Changed attitudes in society, eh? As determined by whom? Not, obviously, by the electorate as a whole, or the law would have been altered. But a Strasbourg-based judge believes he has a direct connection with ‘attitudes in society’ that the MPs we elect lack.

This is what the courteous Aberdonian will be up against. A multi-million pound industry has grown up around human rights law — an industry which, before 1998, didn’t exist. For many lawyers, this is not an abstract question of where to find the balance between legislature and judiciary; it is a practical question of where to find the money for school fees and mortgages.

Plenty of commentators will tell you that David Cameron never wanted to be in this position. The pledge to scrap the Human Rights Act, they aver, was just a bargaining chip, something to be dropped during the expected coalition talks — perhaps in exchange for Lib Dem acquiescence in the EU referendum. Now he’s unexpectedly stuck with his own manifesto. Well, I suppose it’s possible. Still, one of the PM’s more attractive characteristics is that when he finds himself in an unwanted situation, he doesn’t sulk; he does his best to make it work. Hence his choice of minister.

Michael Gove is the politest man in Christendom, and one of the cleverest. He was able to make big and benign changes to our schools, every one of them resisted by the educational establishment. But his new task is of a different order of magnitude. A powerful, articulate and wealthy lobby will set out to destroy Mr Gove’s reputation. It will be the more vicious because it believes itself to be right. No man, especially not a barrister, is a villain in his own eyes. The grandees of Matrix Chambers won’t say, even in their innermost thoughts, ‘This awful Gove chap is threatening our livelihood!’ They will say, and will genuinely believe, that they are defending the independence of the judiciary against an overweening minister.

The Prime Minister must now stand by his minister — and, for that matter, by his manifesto. He must do so because what he said before the election was true: Blair’s Human Rights Act does not guarantee human rights. The direct applicability of ECHR rulings does not make us more free. If you doubt me, look at some of the other countries that cheerfully sign up to it: Albania, Russia, Azerbaijan.

The problem is not with the rights listed in the Convention; it’s with their interpretation by a biased and politicised overseas court. If Parliament wishes to replicate these freedoms in a domestic statute, fine. It has done similar things before. But there is an elegant compromise here, which may save Mr Gove some effort.

Instead of passing a wholly new Act (the Conservative manifesto promised a clunkily named ‘British Bill of Rights and Responsibilities’), why not start with the greatest and most sublime such charters already on the books, namely the English Bill of Rights and its Scottish sister, the Claim of Right? Why not update those statutes, which Burke called ‘our only security for law and liberty’, adding the contents of the European Convention in the form of amendments? Let an amended Bill of Rights guarantee freedom of speech and expression, freedom of assembly and association, freedom of religion and worship, freedom of contract and employment, freedom from oppressive, arbitrary or punitive taxation.

Let it enshrine the equality of all citizens before the law, regardless of race or sex. Let it declare the supremacy of Parliament over foreign institutions and law-codes — thereby making EU directives and regulations advisory pending domestic implementing legislation.

Such legislation wouldn’t simply salvage our sovereignty and our democracy. It would secure the very thing that the Matrix Chambers types are fretting about. What, after all, is the average person’s immediate reaction to the phrase ‘human rights’? It’s unlikely to be a positive one which, given the literal meaning of the words, is telling. (The same is true of the phrase ‘health and safety’, and for similar reasons.)

Tilting the balance back toward the MPs whom we can hire and fire will go some way to rescuing the reputation of both MPs and judges. It will revive the sense that we stand as guarantors of our own freedoms. As Aldous Huxley put it, ‘Liberties are not given — they are taken’.

When addressing civil servants at his new department, Gove told them that responsibility for the justice system is the heaviest responsibility of all because ‘it’s upon the rule of law that civilisation depends’. He continued: ‘It’s the rule of law that protects the weak and the vulnerable from oppression. It’s the rule of law that safeguards the rights and the liberties of every individual. It’s the rule of law that allows business to proceed, individuals to become prosperous and homes to be secure.’

He might have added that it was the rule of law that lifted first England and then the United Kingdom above the run of nations, starting in June 1215. Our rights, as the slightly mawkish Kipling poem puts it, ‘were won at Runnymede’. Eight centuries on, we don’t need them bestowed on us by Strasbourg. Michael Gove will be making that argument with his customary erudition and charm. The rest of us should raise our voices in his support.

Listen to Daniel Hannan on the BBC Today Programme discussing a possible exit from the EU:

Daniel Hannan is a Conservative MEP.

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Show comments
  • SpinningHugo

    I have some sympathy with this, and much of what is said above is correct.For a less polemical take, but which comes tentatively to the opposite conclusion, see

    https://spinninghugo.wordpress.com/2015/05/15/four-bad-arguments-and-a-good-one-for-the-human-rights-act/

    (The stuff about updating the Bill of Rights and Magna Carta is pretty silly. They didn’t and don’t do anything remotely like the Human Rights Act. The best take I know on Magna Carta is

    https://www.supremecourt.uk/docs/speech-150309.pdf

    )

  • Paul Y

    This is a misleading article. The conservatives do not propose, as I understand it, to pull out of the convention. The function of the human rights act is therefore to allow us to deal with these cases in the uk in front of uk judges, rather than in Strasbourg.

    The obligation under the act is already only to take account of Strasbourg judgments.

    The points about democracy are also misconceived: human rights are precisely intended to be anti-majoritarian, a check on executive (and to a lesser extent legislative) power. This does not make them undemocratic – any more than having an independent, unelected judiciary does.

    • Malcolm Stevas

      “Anti-majoritarian” certainly, and a good thing: the tyranny of a majority is no less to be deplored than that of an individual despot. But the point is that they should be OUR human rights, not Strasbourg’s: our “human rights” model was an example to the world long before the EU was thought of…

    • Brekfast_newz

      Very sound response, making all the points I wanted to. But it is a relief to read an article on this topic which actually deserves a considered response. This piece is still legally illiterate but otherwise thoughtful, principled and well-intentioned – unlike the vast majority of the crowd-pleasing gibberish written against the HRA / ECHR / Strasbourg / European law (interchangeably, with no distinction made as to which is which).

      • MH50

        “legally illiterate” pompous ass

        • Brekfast_newz

          “pompous ass” needlessly offensive and contributing nothing to the debate

          (not even punctuation)

      • graeme jones

        Prey reveal your jedi powers, o powerful learned one

        • Brekfast_newz

          Yeah, look. I’m just trying to contribute to the debate. A debate that has been largely conducted by editors and commentators who don’t understand how the law works. Of course, lawyers are automatically excluded from this debate because they have a vested interest (i.e. we all get a sweet royalty share whenever anyone pleads the Human Rights Act and if it didn’t exist we’d all be wandering the streets in our pants trying to rob buskers).

          I did try to think of something less high-handed than ‘illiterate’ but the moderated alternatives – eg ‘dyslexic’ – were somehow more offensive. Anyway, carry on.

  • misomiso

    Fantastic.

    This goes to the deepest level of democracy. Judicial activism is one of the central problems of the rule of law, and the reason Common Law produced such a good society is because we had no written constitution, we had parliamentary sovereignty which was always supreme to the Judges.

    And you’re correct on Gove’s opponents. Its the same with the Europhiles – they BELIEVE they are right, and in their minds no tactic or strategy is off limits in achieving their goal. Tough fights ahead.

    • Brekfast_newz

      I think many of the people on both sides in this fight are principled, but I do believe – from all the party activists I have spoken to, and all I have read – that there is still quite a lot of misunderstanding to overcome (political and public) about the nature of human rights law and the effect of the UK HRA. The press have spearheaded this campaign of ignorance, and not just the popular press.

      I think you are right that the tension at the heart of this issue – and I’d rather not characterise it as a battle – is between the rule of law and the supremacy of Parliament, between judicial activism and the activism of the Executive (i.e. in steering the legislature). This is a necessary facet of the “checks and balances” aspect of our democracy, with our courts at the coal face. Judicial activism is not something to be condemned, because it can pay an important part in safeguarding our freedoms – but it is something to be checked and limited. To that end you are right that the dual impact of EU law and the ECHR, as given effect by the HRA, has had the effect of diminishing Parliamentary sovereignty whilst giving more interpretative leeway to judges.

      Personally I think the latter, at least, is no bad thing given the track record of governments in screwing things up – but then I am a jurist. There should always be a live, molten fault line on the bench where good and bad law is tested for weakness, gaps and its potential for injustice. I appreciate the goalposts have been moved over the past 15 years, and the public perception that the HRA needs revisiting must be heeded – but the fourth estate, the press, have been quite frankly negligent in how they have represented the arguments in that time. This has driven a wedge of misunderstanding between the public and the legal profession which has been as deleterious (to society, race relations, the political debate and to faith in justice) as it was avoidable.

      • misomiso

        That’s a very well thought out answer, but i feel that you don’t admit the central tension of your argument.

        The problem with the issue is that it is fundametnally ‘Either / Or’. EITHER Parliament is ultimately soveriegn, OR the ECHR is. It IS a battle, as it goes to the heart of democracy.

        If we weren’t under the convention, Parliament could have legislated to amend the Act when it came to prisoners votes, or deporting terrorists. As it is, the JUDGES decide these matters, which is against Common Law.

        Parliamentary sovereignty is better than Constitutional sovereignty, and the sooner we get out from under the court the better.

        The political truth is that all this is the result of New Labour attempting to Legislate forever, and giving us a written constitution by stealth and going against the rule of no Parliament binding the will of another.

        • scott_east_anglia

          Perhaps we should just repeal everything the Bliar/Bruin governments did, as a general policy.

          • Aberrant_Apostrophe

            What, you mean bring back hanging for Treason?

          • salt_peter

            Cherie would have some brown underpants to wash.

          • twowolves

            Yes please.

        • Brekfast_newz

          What I was going to add to my answer – but I decided I’d been rabbiting on too long already – was slightly more on-point to what you say here. I was going to say that what this article proposes required a full-blown reversal of our position in Europe and on the Council of Europe, which again is not unprincipled but it is impractical.

          The point of the HRA (always overlooked in the press characterisation of it) was to take the direct effect of ECHR principles and ECtHR judgments out of Strasbourg, and filter it through UK judges. There is a ‘margin of appreciation’ in Convention law which enables us – meaning both our courts and our lawmakers – to express Convention rights in a way which makes sense to (for want of a better phrase) British values. It’s far from perfect, but as a way to take Strasbourg judges largely out of the equation, it already exists. The reason I think ‘scrapping’ the HRA is a dangerous distraction is that the only way we can replace it with something meaningfully different is to leave the Convention and the Council of Europe.

          That is a different proposition altogether – and symbolically, globally, ethically, I think that would be a terrible mistake. It would fundamentally undermine the credibility of supranational agreements which exist to protect self-evident human values (I won’t rehearse the full list here but they’re hard to argue with).

          • Brekfast_newz

            I should add that if these supranational umbrellas collapsed then we (the UK) would probably be fine – although let’s not underestimate the power of ‘creep’ on our basic freedoms, which I’m sure many Spectator readers would agree with. But we would be opening the door for abusive governments and diminished rights across the society of nations.

            I don’t think these phrases, or these concepts, are glib – it’s no coincidence that both the ECHR (1950) and the ECSC (1951, in effect the first incarnation of the EC) were forged in the ashes of a global war, the likes of which we thankfully have not seen since. So while we are right to question whether these processes have developed too far, my instinct remains in favour of keeping both baby and bathwater. I do agree however that, for the good of the baby, the bathwater could do with a bit of refreshing every now and then.

          • misomiso

            Yes i have a problem of rambling in the comments section as well. Especially recently!

            But your trying to skate over the legal depth here. Either Parliament has the final say, or the Judges in Strasbourg do.
            The fact is that Parliament, the public will and civil society are far better gaurentees of liberty than a piece of paper that Judges can interpret how they wish.

            As to the arguments on repercussions if we withdraw etc, these are often wheeled out when leaving the convention is discussed, but first of all its debatable as to to what the result would be, and secondly dire warnings on us leaving should not mean UK citizens should put up with prisoners voting and terrorists living here on benefits. It just shouldn’t.

            The problem is the baby is so dirty no amount of bathwater is ever going to get it clean.

  • Abby

    Thoroughly misguided and misinformed. Sovereignty of Parliament does not mean that it is a sufficient guarantor of democracy – if it were then why bother having judges at all? If domestic legislation is sufficient to guarantee human rights then why were ECHR judgments required to stop the torture of prisoners in Northern Ireland and to allow the Sunday Times to publish a story on the thalidomide scandal?

    Governments will often find it convenient to ignore human rights, and having an additional, external arbiter is essential in these cases.

    • Malcolm Stevas

      It is strange to suggest that our government and judicial system are so inadequate, so unreliable, so prone to corruption or extra-legality, that they require any sort of “external arbiter”.
      And if one decided such an arbiter were necessary to oversee our pitifully inadequate Third World courts, it really should not be the ECHR – the members of which have frequently been shown up as wildly under-qualified, inexperienced or otherwise wholly unsuitable.
      As Lord Hoffman summed up, “The [ECHR] judges are elected by a sub-Committee… on which the UK representatives are a Labour politician with a trade union background and no legal qualifications and a Conservative politician who was called to the Bar in 1972 but so far as I know has never practised. They choose from lists of 3 drawn by the governments of the 47 members in a manner which is totally opaque…”
      Our legal system, and our conception of human rights, were fully formed long before the word “democracy” was generally accepted in most of the world – including Europe.

      • Brekfast_newz

        I agree with Abby’s point up to the word ‘external’. I think that what is ‘essential’ are internal arbiters, i.e. the judiciary, in a tensile relationship with the legislature and the executive. Nonetheless I think an external arbiter is valuable – especially in a globalised society where, like it or not, we are citizens of the world. Malcolm, whilst I can relate to your historic pride in our legal system and rights record, I think it is fair to say the world and our position within it has changed. It is regressive to look forever internally, and backwards, and not acknowledge how we fit into the society of nations.

        Whether the judges in the ECtHR are up to the job is another question, and one you are right to raise.

        • Malcolm Stevas

          I would not argue that our system is the best possible, unimpeachable etc: we can certainly learn from others. I say simply that we developed a sophisticated judicial system, tending toward political liberty and the freedom of the individual, long before most other countries; and crucially, that to permit ECHR rulings precedence over our own government & courts is an unacceptable derogation of sovereignty. Especially given the deep inadequacies of the Court in Strasbourg.

        • Abby

          Yes agreed that what is important is that there is more than one way of safeguarding rights – in theory this could be internal. Ironically, the Human Rights Act which the author is so critical of serves the purpose of making it easier to enforce these rights on a domestic level. I also think it’s misleading to represent the ‘Strasbourg court’ as something entirely alien to the UK – as if our people weren’t there too (and as the author points out, drafted the thing in the first place!)

          If there’s a problem with the judicial appointments process, let’s fix it. Not drop out because we don’t like some of the judgments.

      • Damaris Tighe

        Good God (splutters over coffee while reading Hoffman quote).

      • GraveDave

        t is strange to suggest that our government and judicial system are so inadequate, so unreliable, so prone to corruption or extra-legality, that they require any sort of “external arbiter”.

        No – how could anyone think such a thing? It’s shocking!
        An absolute scandal.

        • Malcolm Stevas

          Facile cynicism. To say we do not need external arbitration is not to say that our systems are perfect, simply that they are ours, and we have proven ourselves more than competent to run our own affairs for far longer than many other European countries have even been in existence.

    • JSC

      The presence of an additional arbiter doesn’t guarantee justice, it just makes it dependent on their prejudices instead, and you have no guarantee that theirs are any better than ours. Many would argue that theirs are worse.

      • Abby

        What’s important is that there is more than one way of safeguarding rights – in theory this could be internal. Ironically, the Human Rights Act which the author is so critical of serves the purpose of making it easier to enforce these rights on a domestic level.

        I also think it’s misleading to represent the ‘Strasbourg court’ as something entirely alien to the UK – as if our people weren’t there too (and as the author points out, drafted the thing in the first place!)

        If there’s a problem with the judicial appointments process, let’s fix it. Not drop out because we don’t like some of the judgments.

  • Julie Carlisle

    Spectacularly charming piece. I’m a lawyer. I have no school fees to pay. In fact I have no job at the moment. And I’m STILL opposed to the scrapping of the Human Rights Act!

    You may live your life by the principles you accuse us of, but please…

    • JSC

      No-one is talking about “scrapping it” (outside of the typical Guardianista hystericals), the question is, can it be replaced or modified to produce something better?

  • flydlbee

    A minister who actually does something. How frightful!

    • Sharon Fruitcake

      He’ll do stuff oh yes, just not what you think it’ll be.

  • Malcolm Stevas

    “The case against the ECHR is well-rehearsed: it cheapens democracy by
    allowing jurists to advance an agenda that would be rejected at the
    ballot box.”

    At least as bad, it imposes the judgements and the will of “foreign princes” upon a supposedly sovereign state.I am far from being alone in resenting this very strongly indeed, and wishing to be rid of it. Our own “human rights” were an example to the world long before they were emulated in most other European countries, let alone remoter places.

  • http://xstaedtler.wordpress.com/ Staedtler

    “Let it enshrine the equality of all citizens before the law.”
    Let it include the Royal Family, the House of Lards, the Church of England and the whole poxious nightghast of medieval gargoyles we’ve got hanging around this country, choking off the air and feebling everyone to idiots.
    Tories want equality? Ha! They can’t handle equality.

    • Malcolm Stevas

      Perhaps your little picture is an accurate depiction – it certainly matches your English. Neither the monarchy, the CofE nor the House of Lords threatens our liberty, whereas the ECHR infringes it daily by assaulting our sovereign ability to rule ourselves.

  • CharleyFarleyFive

    Superb stuff as always from Hannan, a pretty impressive job application for Gove’s team in my view.

    • GraveDave

      Gove the expenses fraudster.

      • noix

        Which ones weren’t?

  • Mary Ann

    Well this was the first that I knew that that “under the ECRH’s proposal, serious felons would remain disenfranchised.”, I actually think that those are going to be allowed out should keep the vote, it is part of being a responsible citizen. I just wish that the popular media would tell the truth before our human rights are signed away by the Bullingdon Boys.

    • GraveDave

      Well this was the first that I knew that that “under the ECRH’s proposal, serious felons would remain disenfranchised.”

      What do they mean by ‘serious’? Child murderers should never be let out. The sentence should be mandatory. Serial child abusers the same – say ‘three strikes and out’. But otherwise I think rehabilitation is still the best road -where there’s a real possibility.

  • Daniel Hannan

    OK, chaps. So if the right of a prisoner to vote is a fundamental human right, how about the right of a 16-year-old to vote? Is there anything at all that we can determine democratically, or must we let judges decide even wholly political issues?

    • David

      Sorry if this is slightly off-topic Dan but I hope you play a very, very large part in the forthcoming Out campaign. Please don’t book a holiday anytime soon!

      • UncleTits

        Why on Earth do you hope that? Hannan lobbies for EU expansion to include Turkey, is beyond sycophantic to David Cameron who will lobby to stay in the EU, and spent his post-EU election time stitching UKIP up behind the scenes. Your hope doesn’t sit too well with me.

        • EasyStreet

          The Turkish issue is a cunning ploy by Eurosceptics to expose the contradictions at the heart of the European project. Hannan knows full well that the ‘core’ nations will never accept Turkish membership of the EU because they do not want a Muslim-majority nation with extremely dodgy neighbours joining the conveyor belt towards their federal super-state. However, the ‘core’ leaves the door open for Turkish membership and finds technical reasons to stall, because formally closing the door would a) force a genuine debate over the tensions between Islam and European values and b) further expose the European state-building project. Lobbying for Turkish membership is therefore a way for Eurosceptics to stir the pot on two right-wing issues while maintaining an outwardly ‘cosmopolitan’ stance, and thereafter derive some enjoyment from watching the bureaucracy tie itself in knots as it tries to avoid the dreaded cultural relativism…

          • UncleTits

            Lobbying for Turkish membership of the EU is also, coincidentally, the way of bringing Turkey into the EU which, as a founder member of Conservative Friends of Turkey, is Hannan’s intention. Really, just when you think you’ve heard it all…

    • global city

      Dan. I hope you do not fall into the trap of debating our EU membership in terms largely to do with ‘trade’? The political aspects are the most dangerous and the least understood.

      To do anything other is to let the Europhiles off the hook, as Jean Monett demanded. Their weasel mantras need to be exposed for what they are and the debate forced into honest territory. If they want us to remain in a political/nation building project then let them make their case from that angle.

      • Brekfast_newz

        He’s not actually asked about EU membership, he’s asked about application of human rights law. The EU is not a signatory to the ECHR, membership of the two is unrelated, and Strasbourg and Brussels are two different jurisdictions. Sorry to be a pedant but there is a fundamental difference and it’s important everyone in the debate understands that.

        • Aberrant_Apostrophe

          membership of the two is unrelated

          Except that a condition of EU membership is to be a signatory to the ECHR. If Cameron does succeed in withdrawing the UK from the ECHR, then things will get very interesting.

          • Brekfast_newz

            Sure, but it’s a condition in that it represents a qualifying standard – not because the two are integrated on any governmental, judicial, or administrative level.

            I am not sure withdrawing from the ECHR could be counted as a success, nor indeed do I think Cameron ever intended that would be the result when he started down this road. But that’s just my opinion.

          • Arthur Rusdell-Wilson

            Surely we have no intention of withdrawing from the Convention, nor from the Council of Europe, our intention is simply to repudiate the jurisdiction of the Court, or, at the very least, to make its judgement advisory, and to allow our courts to interpret the Convention in the light of English Common Law and not of any framework of continental law whatsoever.

      • Bozza ‘n’ Dave

        Europhiles = ECHR ?

        Since when – your comment amounts to little more than primary school level horse dung.

      • will91

        Time after time we view the issue of EU membership purely through an economic lens. As if the price of your weekly shop is of equal value to whether your community will still be recognisable in a few decades time.

        • Mary Ann

          Off topic, this is about the ECHR not the EU, two different things.

          • alfredo

            True, but a mere technicality. Two cheeks of the same bum. The actual courtroom itself has a huge EU flag in the floor as its central motif.

    • Fried Ch’i

      You tell us, mate. It easily takes about ten years in Britain to get something as stupid as an EU referendum off the ground, and then chaps like you come here and lecture us about Magna Carta, democracy and other somesuch piffle.

      What is there to ‘discuss’? Bring it on.

    • Abie Vee

      A loaded question (which presupposes that Judges, and therefore the Law, are somehow ant-democratic). There is a good reason why no Judges are ever elected to office by the people; a very good reason… they are beholden to no external influences, their future does not depend upon the capricious whim of the mob!

      Be that as it may, if you voluntarily join an exclusive Golf Club you abide by the rules of that club. If you don’t like the rules of that club, it is open to you to stand for office and get the rules altered. If you fail in your quest, it is open to you to leave the Club.

      Which is broadly where we are today.

    • Carter

      In case you’re not aware, there’s a fundamental difference here. The only thing as far as I can see preventing 16 year olds voting is their immaturity regarding the issues. Why give voting rights to prisoners who have deprived others of their voting rites by murdering them, or robbed, raped and assaulted law abiding citizens ? This is taking equality to immoral extremes.

      • cedders

        As I recall, the ECHR point on prisoners voting rights was that there was no legilsation to forbid it. Their inability to vote was a Ministerial commandment then enshrined in policy with no legal basis. Easily fixed by Parliament passing a law to restrict/prohibit their voting right.

      • Mary Ann

        Most criminals are not murderers or rapists, a lot are drug addicts, petty repeat offenders, the mentally ill, voting is part of being a responsible citizen it might help with rehabilitation, anyway the ECHR does allow the vote to be taken away from the most serious offenders.

    • The_greyhound

      It’s high time we put judges back in their box. Democratically unaccountable, and in many cases biased and incompetent, judicial interference in our democratic governmental process is one of the scandals of the age. Both the prisoners and the schoolchildren fail the social contract test – prisoners willingly forwent the vote, along with freedom of movement, when they committed their offence; children, cannot discharge the obligations of a citizen, and so should not enjoy the privilege of the ballot.

    • huw

      1/3 betting to stay in the eu. don’t you have better things to do hint hint?

  • David Hughes

    The piece is a load of poop emoticon For an intelligent man, Hannan really does write some rubbish.

    Let’s start with the title: “Michael Gove -vs the lawyers”. It’s just a stupid title. Does Hannan really think that the tens of thousands of lawyers in this country are really united in our desire to see terrorists walk the streets freely? Does he disregard the views of Lord Pannick, for example (a man even more clever than Hannan)? Does he think that the Society of Conservative Lawyers is made up of infiltrators from the Labour Party?

    “in this country, constitutional freedom has always been bound up with parliamentary supremacy” so Hannan asserts. But he is either a fool or a liar, because what parliamentary supremacy means is that there is no freedom that a commons majority cannot take a way on its whim. Of all the world’s democracies, only New Zealand and Israel have no written constitution that places limits on their legislatures. Does Hannan really think that we have a wisdom that only Israelis and New Zealanders share? Constitutional freedom, far from being bound up with parliamentary supremacy, is inconsistent with it. The only rights that we enjoy under parliamentary supremacy are those which parliament has not yet decided to take from us.

    “Next week, the flesh-and-blood Queen will come before that Parliament to unveil her government’s programme. Among other things, she will announce its intention to scrap the Human Rights Act, which gives direct effect to the rulings of the Strasbourg court in Britain.”

    No, it doesn’t. The Human Rights Act renders convention rights enforceable in British courts (to the extent that that is possible whilst preserving “parliamentary supremacy”). British courts (let’s leave aside technical arguments about whether such things exist) are required to take account of Strasbourg rulings, but not to follow them if they disagree. Perhaps we can forgive Hannan this misrepresentation, as he’s not a lawyer. But if we are going to be correct, lawyers have our uses tongue emoticon

    “The origins of the row go back to 1998, when Tony Blair decided to place the European Court of Human Rights at the apex of the British legal system”.

    Amongst Tony Blair’s many sins, this is not one. As I have explained above, the Strasbourg court is not at the “apex of the British legal system” (again, there isn’t really a “British legal system”, but we’ll let that one go). The Strasbourg court makes rulings of which our courts must take account, not necessarily follow. And the Strasbourg court has been making decisions about whether or not Britain is in breach of our convention obligations, to which we as a country voluntarily signed up, for decades.

    “The case against the ECHR is well-rehearsed: it cheapens democracy by allowing jurists to advance an agenda that would be rejected at the ballot box.”

    So, the United States (to cite just one example) is a cheapened democracy? Let’s remember that the rights contained in the convention were drafted by British lawyers. Does Hannan think that any of them are bad ideas? Because if he doesn’t, what we have is that he dislikes their application in certain cases.

    One heard similar arguments when the US courts made the terrible, undemocratic decision to ban the segregation of schoolkids according to race. Or that it was unconstitutional to ban a black person from marrying a white one.

    Here’s a thing. The rule of law means that we apply the law fairly. If you’re a criminal, you get punished according to law. The thing with judges is that (generally) they apply this. A case comes before them, they hear arguments, and they decide according to the law. They take the principles that democracies have recognised as being fundamental rights, and then apply them.

    Sometimes even the best laws will benefit bad people. The only alternative to that is to abandon the rule of law altogether.

    “But what is the case for it? To what problem was the 1998 Human Rights Act supposed to be a solution? Were British citizens being routinely expropriated, or interned in camps, or forcibly transferred to remote exile? In truth, there was no crisis in civil freedoms; but there was a crisis in democratic legitimacy, which Tony Blair’s legislation exacerbated.”

    In fact, Britain as found to be in breach of the convention (obligations which, I repeat, we had freely accepted) quite often. British courts were prevented from making rulings on rights that British citizens possessed. How is that satisfactory?

    “As powers shifted from MPs to judges, the gap between rulers and ruled widened. Many of the grumbles that people have about the ECHR — the sense, above all, that it rewards scoundrels and punishes honest citizens — derive from the tendency of British and European judges to stretch the Convention far beyond what most of us regard as the plain meaning of its words.”

    What there is is a lack of maturity on the part of politicians who don’t accept that judges will apply rules that politicians have passed to people of whom politicians disapprove. Taken seriously, Hannan’s complaint is about judicial independence. Perhaps he would like to see an elected judiciary?

    “Abu Qatada, for example, managed to fend off repatriation to Jordan for years despite having entered the UK illegally with forged papers. He was able to do so not because there was any danger of his facing torture there, but because some of the evidence against him may have been derived by torture. The Afghan hijackers who arrived after diverting a flight to Stansted at gunpoint are still in Britain, living on benefits, despite the best attempts of four successive home secretaries to remove them.”

    Abu Qatada was eventually sent home. We can all think of judicial decisions we don’t like. Would Hannan like to live in one of those countries where the govt always wins in court? I doubt many of us would.

    “Then there are the less high-profile cases that may not be so familiar to cerebral Spectator readers, but which have dominated tabloid front pages, such as that of the Libyan alcoholic with 78 convictions who has escaped deportation because the selling of alcohol is largely banned in Libya. I think it’s fair to say that this is not what the authors of the Convention had in mind when they prohibited ‘inhuman or degrading treatment or punishment’.”

    This is an argument that lawyers call “original meaning”. It says that bills of rights should have the meaning they bore when adopted. It means that the Convention should have the meaning it would have had in the 1950s. Why should 21st century judges have to imagine themselves back in time, to an era when perhaps casual racism was tolerated and homophobia enshrined in law? Surely the way to interpret such documents is as intelligent, principled 21st century lawyers? Because rights are legal things, bills of rights legal documents.

    “Michael Gove’s argument is not that the Euro-judges are always wrong. It’s that they are engaging in judicial activism.”

    Judicial activism is usually code for making a decision of which the user of the phrase disapproves tongue emoticon

    “Judicial activism is far older than the ECHR, of course. In 1717, Bishop Hoadly told George I, ‘Whoever hath an absolute authority to interpret written or spoken laws, it is he who is truly the lawgiver to all intents and purposes, and not the person who wrote or spake them.’”

    So Hannan really doesn’t like an independent judiciary? He wants MPs to hear cases instead of judges?

    “They’re quite brazen about it. Listen to the current British judge on the ECHR, a lifelong Eurocrat called Paul Mahoney: ‘The open textured language and the structure of the Convention leave the Court significant opportunities for choice in interpretation. In exercising that choice, particularly when faced with changed circumstances and attitudes in society, the Court makes new law.’”

    Hannan fails to recognise that judges making new law is entirely consistent with the common law tradition (tbc)

    • twowolves

      I think you’re right about Hannan but after that you got seriously wayward, I gather you are a lawyer yourself with much to gain from the status quo.

  • David Hughes

    “Changed attitudes in society, eh? As determined by whom? Not, obviously, by the electorate as a whole, or the law would have been altered. But a Strasbourg-based judge believes he has a direct connection with ‘attitudes in society’ that the MPs we elect lack”

    So, would Hannan want all cases decided by MPs? How many of u would want legislation passed by a future Labour govt to be interpreted by a court of Labour MPs?

    “This is what the courteous Aberdonian will be up against. A multi-million pound industry has grown up around human rights law — an industry which, before 1998, didn’t exist. For many lawyers, this is not an abstract question of where to find the balance between legislature and judiciary; it is a practical question of where to find the money for school fees and mortgages.”

    Firstly, my son is state-educated. Secondly, I make a good income, but probably less than the salary and allowances of an MEP. And the vast majority of my income comes from the private sector. So I cost the taxpayer less than Hannan does.

    “The direct applicability of ECHR rulings does not make us more free. If you doubt me, look at some of the other countries that cheerfully sign up to it: Albania, Russia, Azerbaijan.”

    But Hannan’s problem is less with the ECHR than with an independent judiciary. Is the USA a cheaper, lesser democracy than we are?

    “Instead of passing a wholly new Act (the Conservative manifesto promised a clunkily named ‘British Bill of Rights and Responsibilities’), why not start with the greatest and most sublime such charters already on the books, namely the English Bill of Rights and its Scottish sister, the Claim of Right? Why not update those statutes, which Burke called ‘our only security for law and liberty’, adding the contents of the European Convention in the form of amendments? Let an amended Bill of Rights guarantee freedom of speech and expression, freedom of assembly and association, freedom of religion and worship, freedom of contract and employment, freedom from oppressive, arbitrary or punitive taxation.”

    The problem is not with a BBR in principle, as Lord Pannick makes clear in today’s Times. It is that any BBR worth the paper it’s written on is bound to give rise to the same complaints. Any one of the rights of which Hannan approves will, sooner or later, be used by someone of whom he does not approve.

    “Let it enshrine the equality of all citizens before the law, regardless of race or sex. Let it declare the supremacy of Parliament over foreign institutions and law-codes — thereby making EU directives and regulations advisory pending domestic implementing legislation.”

    Here’s where it becomes harder to accept that Hannan is a sincere but deluded man, and more difficult not to conclude that there is something more base at work. For all his bleating about democracy, he wants a BBR to take away the choice of the British people to remain in the EU (if we vote to stay in).

    “Tilting the balance back toward the MPs whom we can hire and fire will go some way to rescuing the reputation of both MPs and judges. It will revive the sense that we stand as guarantors of our own freedoms. As Aldous Huxley put it, ‘Liberties are not given — they are taken’.”

    Yes. And Hannan wants MPs to be free to take more of them from us.

  • Fried Ch’i

    After performing a deserved and sustained HAMMER TIME on the banksters, this must be the next big thing coming. It’s HAMMER TIME for the British lawyer and solicitor profession, not the European judges.
    Don’t tell me you have not seen this coming, buddies.

    • Damian Hurts

      Rest assured, they haven’t.

    • EasyStreet

      Can we cut off the funding stream for Mrs Clooney’s campaign to repatriate the Elgin Marbles while we’re at it? It’s not like Greece is paying…

      • Fried Ch’i

        I believe the Pergamon Museum in Berlin is more than happy to take payments in the form of further hard Greek assets. We could even campaign for Chipperfield to build another museum right next to it.

  • vvputout

    ww.theguardian.com/commentisfree/2015/may/13/arguments-human-rights-act-michael-gove-repeal-myth-busting

    Judgments of the Strasbourg court are enforceable by virtue of the Convention itself rather than the Act, which only requires UK courts to take account of them.

    The 1688 BoR is hopelessly out of date. It might be appropriate to use the Canadian Charter of Rights as a drafting base.

  • Torybushhug

    HR’s never on the side of the decent responsible majority, always on he side of cheats and spongers.

    • Mary Ann

      You know in your heart of hearts that it applies to all of us, but if you or I were to use it the tabloid press wouldn’t be interested, they are only interested when criminals use it.

  • gerronwithit

    The problem does not just rest with the Human Rights Act but also with the notion of judicial activism. As was explained in the above article, judges feel they have the right to extend interpretation well beyond any intended legislative definition and this goes from top to bottom of the legal profession as many of these aberrant decisions are formed and accepted in our Supreme Court. There does appear to be contempt by the judiciary for the legislature as well as the usual liberal left invasion that conspires to destabilise the fabric of our society.

  • GraveDave

    that may not be so familiar to cerebral Spectator readers, but which have dominated tabloid front pages, such as that of the Libyan alcoholic with 78 convictions who has escaped deportation because the selling of alcohol is largely banned in Libya.

    I bet if this is fully looked into it’s not strictly true. Sounds like another factoid from papers like The DM.

    • Brekfast_newz

      The facts of the case are that he’d lived here for more than 30 years having arrived in 1981 to study aeronautical engineering but slipped gradually into alcoholism and a string of petty, non-violent offences. In considering whether to deport him, the court weighed his Article 8 rights to a family life – namely, that his entire life was here not Libya and this had been established over three decades – and moreover that the likely punishment for his condition (alcoholism) in Libya would be de facto torture (public birching). The two factors together weighed together that deportation would be disproportionate punishment.

      I think it’s a hard case and I’m not convinced it was decided correctly, but it’s certainly more nuanced than the coverage (or this article) would suggest. The point of unelected judges is they do not have to make popular decisions – although I believe they have an obligation to open justice to bear in mind public perceptions in the rationale they bring to decisions. All the same, if you have a principle of not deporting or extraditing people to places where they would face torture or ‘cruel and unusual punishment’ – and personally I think it is a good principle – then you need to apply that equally to drunken wretch as you would to a white middle-class computer hacker.

    • Mary Ann

      Never let the truth get in the way of a good DM story.

  • Abie Vee

    Just what we need, eh? ANOTHER bronze statue. Yup that should really focus minds.
    It is said that as events get further away from memory, the monuments get disproportionately bigger. I thought the new Bomber Command Memorial in Green Park particularly apt… it reminded me of the Brandenburg Gate on Unter den Linden.

    Indeed Daniel, we do not need the EU to remind us of our history, of our best practice: precisely the opposite… it is we who must continually remind them, and bestow our legacy upon them! We cannot do that by running away and leaving them to their own devices… we may all guess where that might lead.

  • Henryhomer

    I’ve got the answer, unqualified lawyers and judges,lots of them. Then we can send Gove to Health and he can fix that with unqualified surgeons. Bravo Michael.

  • UncleTits

    “Among other things, she will announce its intention to scrap the Human Rights Act

    Will that be like when she announced its intention to have a “Great Repeal Bill” in 2010?

  • Arthur Rusdell-Wilson

    Whilst I, being a Roman Catholic, could not support a re-enactment of the original Act of Henry VIII, it might be good, for old times sake, if the proposed bill to abolish the jurisdiction of the ECHR could contain in its preamble the words from the preamble to the Stature in Restraint of Appeals: “Where by divers sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an Empire.”

  • Mike Nelson

    The European Convention on Human Rights (and Fundamental Freedoms) was obviously drafted with the best of post-war intentions and largely by a Briton, namely David Maxwell-Fyfe, a judge and Conservative Home Secretary. From 1966 individual British citizens were able to take their cases to the European Court of Human Rights, in Strasbourg – usually as test cases supported by an interested pressure group – if they believed that a ruling by the British courts was in breach of their rights as guaranteed under the Convention. This process was, however, lengthy and expensive, and so far from ideal.

    In 1998 New Labour – rather than choosing the more complicated option of drafting a new British Bill of Rights – opted instead simply to turn the Convention into British law. After a two-year ‘training period’ to enable the legal profession to familiarise itself with the implications of this for their work, the law came into practice in 2000.

    I would take issue with Mr. Hannah’s analysis on two points. Firstly, it is not so much that ‘Tony Blair decided to place the European Court of Human Rights at the apex of the British legal system’ so much as he decided that British citizens could now have their rights under the Convention upheld by the British courts. Arguably, therefore, this could be better described as returning the British courts to (their rightful place) ‘at the apex of the British legal system’.

    Secondly, there is the assertion that ‘the problem is not with the rights listed in the Convention’. I would respectfully disagree. Many of the rights given there seem initially laudable enough in their intention, but are expressed in such vague and general terms that they are little actual practical guide in the precise circumstances of specific cases. Therefore, a judiciary – using the term loosely, when considering the lack of judicial qualifications of too many of the ECHR’s ‘judges’ – wedded to the principle of judicial activism, can all too easily find whatever often circumlutory justification it wishes to make for almost any liberal ruling it wishes to give.

    A word on the distinction between the European Court of Human Rights and the European Court of Justice: the former is not an EU institution but the latter is. The rulings of both are conceived of as being superior to rulings to the contrary made by national courts; and national governments must then amend their domestic laws accordingly.The ECHR is primarily concerned with natural/human, political and civil rights. The ECJ is primarily concerned with economic and social rights. Therefore, if the case is about corporal punishment in schools, the rights of transsexuals, torture of terrorist suspects, unlawful detention, etc. it will be a matter for the ECHR. If it is about pensions, working hours, equal pay etc. it will be more of a matter for the ECJ. If we were to leave the EU, then rulings of the ECJ would no longer be our (direct) concern. If we were – as it seems we are – to draft our own new Bill of Rights, then the the 1998 Act, which turned the European Convention into British statute law, would presumably be repealed. However, would we also then choose to remove ourselves from the jurisdiction of the ECHR? If not, there would still remain the possibility that a British citizen might still go to Strasbourg if s/he believed that a provision of the new Bill of Rights was in breach of his/her rights under the ECHR. And, if so, we would largely be back to where we were pre-1998.

    • mrsjosephinehydehartley

      ECHR stands for European Convention on Human Rights, I understand we are signed up to it, that’s all..I find it provides a very good point of reference when necessary or appropriate..but it’s nowhere near as generous and flexible as our ( largely unwritten) UK constitution in my view.

      • Mike Nelson

        I’m not sure how your quibble about abbreviations advances the discussion. However, if you prefer, we can refer to that court as the ‘ECtHR’, as many do.

        However, to say – of the Convention – that ‘we are signed up to it, that’s all’ simply displays a lack of awareness of the legal relationships involved, and of the history of Britain’s involvement with the Court. We have lost many cases at the ECtHR, and have been obliged to amend British law accordingly. There are too many examples of such cases to identify here, but a list of them is probably only a Google away. Of course, we could have refused to amend our laws when so directed, but only on pain of expulsion from the Council of Europe – an option we have to date declined to exercise.

        The problem – as some see/saw it – with ‘our (largely unwritten) UK constitution’ is that our rights there only existed in negative form. In other words, one is at liberty to do something, or is free from some or other form of oppression, as long as there is no law saying otherwise. The European Convention on Human Rights, and all other attempts at ‘Bills of Rights’ in general, are indicative of a preference for positive statements of rights and freedoms; in other words, clear statements of what we are able to do, and the forms of oppression from which we can expect to be free. As stated in my previous post, the problem with the Convention is that these positive statements are expressed in rather general and vague terms, thereby giving too much leeway to liberally inclined judicial activism.

  • mrsjosephinehydehartley

    It’s the rule of law that is the bedrock upon which policy froth can play..

    But I still don’t think we need a written constitution or any other bills to pay for.

  • alfredo

    You mention the Bill of Rights. Surely the main objection to ECHR isn’t whether it makes good or bad judgements; it’s the principle enshrined in that Bill of Rights, but representing the spirit of our whole history and constitution, that no foreign court can have jurisdiction in the realm of England. I’ve always found the idea of foreign judges administering justice in another country utterly bizarre – though I know many are quite comfortable with it. But what’s the need for it, anyway?
    Equally bizarre, to my mind, is – conversely – our own judges sitting in judgement on the quality of the justice system and laws in other countries when deciding whether to extradite someone.

    • Mary Ann

      It’s not a foreign court, one of its founding fathers was Churchill, its the European Court…..and we are European.

      • alfredo

        I would have thought that a court with 48 judges one of which is British could be termed a ‘foreign court’ without too much violation of the normal use of language.
        Would Churchill have approved of the use to which this court is now put?

  • http://www.im.vg Litigation Magnet

    Perhaps censorship should be banned. Then perhaps constructive comments by people who know would be published.

    The Human Rights Act has opened the door to indefinite security of tenure for tenants who have assured shorthold tenancies. The only way that the Tories can satisfy the landlord lobby is to “repatriate”, or change, the case of Buckland v UK Govt (2012). This case states that there must be reason to evict, and that there must be fault that goes with the reason. This means section 21 notices are illegal as the court is required to evict if a notice is served. The Human Rights Act 1998 requires courts to take account of ECHR judgements and to interpret the law so as to give them effect. This means that courts should find that any agreement within an assured shorthold tenancy that a landlord can serve a section 21 notice is unfair per the Unfair Contract Terms Act 1977 and so unenforceable unless the tenant agrees to leave after being fully informed of their right to stay indefinitely. In any event a court can only make an order for lawful possession. It would be unlawful to make a possession order on the basis of a section 21 notice without a reason to support it. That reason, or fault on the tenant’s part, should be proportionate to the result of such an order. The effect of such an order, should the tenant refuse to leave, is violent eviction enforced by the state. In other words the reason for seeking a possession order must be a serious breach of the agreement. Not a neighbour complaining that the cat comes in their garden or that the tenant is a jew and the landlord has just found out, or Asian, or gay.

    Given the scrapping of legal aid and the restrictions on legal protection insurance the average litigant must now represent him or herself. Pleading the Human Rights Act 1998 means the costs risk (itself a breach of the right to a fair trial) is at the level of life changing catastrophic bankruptcy if the point fails. The average litigant is thus barred from seeking the protection of the Act. It is therefore of no relevance unless the state has authorised payment of fees on behalf of litigants as in the Immigration Tribunal System and alleged terrorists. The only reason this is done is to highlight cases that succeed using the Act. Cases the state knows will be unpopular and lead to calls to scrap the Act.

    Have no doubt that any Bill of Rights will be ignored as well. Judges won’t take any notice of it.
    To use it will cost every penny you will ever have, have had or would like to have. Unless you are a terrorist.

    Landlords demand it.

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