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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’.

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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