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Leading article The Week

Repatriate British justice

17 March 2012

7:00 PM

17 March 2012

7:00 PM

If an inquiry were to be launched into the excesses of the dentistry profession, it would not be conducted by a body made up entirely of dentists. You wouldn’t put a team of journalists in charge of the Leveson inquiry. Why, then, was Nick Clegg allowed to appoint a commission on a bill of rights — the body charged with reviewing Britain’s membership of the European Court of Human Rights — made up almost entirely of lawyers, and human rights lawyers at that? Was there ever any doubt that lawyers would argue for more complexity, and a system which protects their power?

Almost every day in government, ministers are told they cannot make decisions because something or other is illegal under European law. It’s become the standard gambit, used to end discussions. Votes for prisoners? This is no longer a subject on which British people have a right to a discussion. Teachers telling pupils to turn out their pockets? It violates the ECHR right to privacy. Deport a convicted jihadi? Sorry, minister, Strasbourg says no. Sir Jeremy Heywood, the Cabinet Secretary whom we profile on page 12, once tried to win an argument by saying the Prime Minister would ‘go to jail’ if he sought to cut regulation on business imposed by Brussels.

This week it became even clearer that David Cameron’s project for a British bill of rights, which he hoped would repatriate law, is going to end up being a damp squib. A British bill of rights is abhorrent to the Liberal Democrats, so they have cleverly rigged the committee so it will produce a document full of drivel which will be overruled by the European Court of Human Rights at every turn. The sole member of the eight-strong commission who is not a lawyer — academic Dr Michael Pinto-Duschinsky — resigned in disgust once he realised that the whole enterprise was intended merely to maintain the status quo and keep lawyers’ powers intact at the expense of parliament’s. The three best-known members of the commission are Baroness Kennedy of the Shaws, Lord Lester of Herne Hill and Philippe Sands, all of whom have had highly successful careers in the human rights industry and none of whom was ever remotely likely to recommend that the role of the European Court of Human Rights be weakened. All that was missing was Cherie Booth QC, and Clegg would have had a flush hand of ECHR enthusiasts. He calculated, correctly, that Cameron has no eye for detail on these (and most other) matters so he could stuff the committee with people complicit in what has amounted to a huge power grab by the legal profession.

Every now and again, the government tries to mount a pathetic and inept fightback. It is positively Orwellian that we now have an institution in Parliament Square called the Supreme Court of the United Kingdom. How can it possibly be deserving of that title when anyone who dislikes its decisions can hop off to Strasbourg for a higher ruling? Some supreme courts, it seems, are more supreme than others. Even referring to David Cameron’s team as ‘the government’ is a push when, as the Prime Minister has found, at least a quarter of his workload involves enacting diktats from Brussels.

There is no problem with the principles involved. Critics of the ECHR do not argue, for a second, about the commitment to the right to life or the right to a free and fair trial — least of all Dr Pinto-Duschinsky, who narrowly escaped transportation to a Nazi death camp while a young child. The problem is created by superimposing EU law on to English common law. It creates a legalistic mess, leaves principles open to interpretation — and cedes massive power to the judges.

The result is a dysfunctional court in Strasbourg jammed with all manner of spurious and speculative cases — while the real human rights abuses go on unabated. As Russian judges in Europe pass judgment on Britain’s social policies, critics of Putin’s regime are found dead or go missing. It was a human rights lawyer, Lord McCluskey, who made the prescient forecast in the House of Lords in 1998 that the passing of the Human Rights Act would come to be seen as ‘a field day for crackpots, a pain in the neck for judges and a gold mine for lawyers’. The vaguer the law, and the greater the opportunities for challenging it, the richer the lawyers.

There is one intriguing omission from the original European Convention on Human Rights, signed in 1950. There was nothing to guarantee democracy. A British bill of rights should not make the same mistake. Its very first clause should acknowledge the ancient common law principle, upheld in the famous ‘metric martyrs’ case, that parliament is absolutely sovereign. We do not need a clever lawyerly document extricating us from Strasbourg. All we need is a bill of rights, declared senior to Strasbourg.

A big decision awaits the Prime Minister. Will he reassert the sovereignty of parliament and make his new Supreme Court truly supreme? Or will be content to allow Strasbourg to overrule both? This choice is his.

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