James Forsyth reviews the week in Politics
After a good meal, Tory MPs like to play a game: guess the first resignation from David Cameron’s Cabinet. For a party that loves plots and intrigue, this goes some way to making up for the fact that everyone will be on their best behaviour between now and the election. When it comes to who might walk on a point of principle, one name comes up more frequently than any other: Dominic Grieve, the shadow justice secretary.
This is, perhaps, appropriate given that Grieve was thrust into the limelight by David Davis’s self-immolation over 42 days. Straight after Davis resigned as shadow home secretary, Cameron and Osborne desperately wanted to prevent the possibility of a split over the issue and so having a friend of Davis who shared his trenchant opposition to 42 days fill the gap seemed sensible, especially as Grieve is a strong Commons performer who is popular with his colleagues.
But it was a case of act in haste, repent at leisure. Within days senior figures in the party were saying that they couldn’t envisage going into the election with Grieve as shadow home secretary: not surprising given that even before his elevation key members of the Cameron team were unconvinced by him. When a presentation on how to win more ethnic minority votes for the party included the line ‘We need more MPs like Dominic Grieve’, Steve Hilton, the keeper of the Cameron brand, could barely suppress a laugh.
Certainly, Grieve was not a typical shadow home secretary. He is a cerebral QC who speaks fluent French and he had little time for the tub-thumping approach to the job so beloved of some politicians. This caused problems. At one lunch with the then editor of the Sun Rebekah Wade, Grieve criticised the way that the paper covered crime. Wade reportedly told Andy Coulson that as long as Grieve remained in that post, the paper could not endorse the Conservatives. So, in January’s ‘pub-ready’ reshuffle, Grieve was replaced by Chris Grayling, one of the more politically aggressive members of the shadow Cabinet.
Grieve, though, was not sacked altogether. Rather, he was moved to the justice brief. Grieve — who forced Cameron to offer the Kent concession to his grammar schools policy, allowing more grammar schools to be built in areas that still have them — has been an effective bureaucratic operator. When shadow Cabinet members have wanted to put out a statement about a court case that Grieve disagrees with, he has stymied them by going over everyone’s heads with a call straight to Ed Llewellyn, the leader’s chief of staff. One frontbencher has a special text message code — ‘beep, beep’ — to warn a friend when a Grieve problem is about to emerge.
Grieve has also fought hard for his own patch. One ally of Philip Hammond says that the shadow chief secretary to the Treasury was exasperated when Grieve was the only member of the shadow Cabinet not to come up with a specific cut to his brief’s budget. There is even word that Grieve would like to see pay increased for judges.
Where Grieve’s actions are most worrying his colleagues is on the Human Rights Act. In his maiden speech in 1997, Grieve argued for the incorporation of the European Convention on Human Rights into British law. The problems caused by the way Labour had done this through the Human Rights Act were a significant concern for the Cameron leadership right from the off. In discussions some argued that the Human Rights Act should simply be scrapped. Others maintained that the court at Strasbourg, which is extremely active, was a real threat to British sovereignty and that the Tories should leave the convention altogether.
Grieve was strongly opposed to these positions, warning that withdrawing from the convention would make Britain a pariah nation and set an awful example to the emerging democracies of Eastern Europe. Instead, he argued for a third way: a British Bill of Rights. This, Grieve said, would prevent many of the problems caused by the Human Rights Act as well as providing a ‘margin of appreciation’ that would force the Strasbourg court to respect the way our courts interpreted the convention. Grieve had a major advantage in these discussions: he is a talented and able lawyer. One person involved in them says that there was a ‘severe lack of heavyweight legal advice’ apart from Grieve’s, enabling him to carry the day.
Now Grieve has indicated that a British Bill of Rights would not be in place until towards the end of Cameron’s first term. (By contrast, the Human Rights Act received royal assent 18 months after Labour won the 1997 election). This means that Tory policies on politically explosive subjects such as crime, terrorism and immigration could be challenged under the current Human Rights Act. The fear is not just of the actual challenge, but the neutering effect that the risk of litigation could have on the way public bodies implement these changes. Why apply the Tories’ new rules if you fear you might be sued for doing so?
To compound this problem, we will not know if the British Bill of Rights offers a sufficient ‘margin of appreciation’ until it has been tested in Strasbourg, something which will take another few years. So, the Grieve approach means that the Tories would not know if his proposed legal fix has worked until well into the second term of a Cameron government.
Some insiders think that events will force Grieve to move faster, or be moved. One predicts that as soon as a decision based on the Human Rights Act becomes a cause célèbre, the British Bill of Rights will move from being a ‘year four and a half priority to a year one one’.
And, no one quite knows if Grieve’s plan will be enough to keep the Strasbourg court in line. One shadow Cabinet member, who has tangled with Grieve over the issue, predicts that Cameron will perform a rapid U-turn on the British Bill of Rights straight after the first case telling him that he has to pay compensation to a terrorist detained without trial.
Ultimately, Grieve is committed to keeping Britain in the ECHR, and thus under the final jurisdiction of the Strasbourg court. But the impression given by the Tory talk of a British Bill of Rights is that the courts in this country will have the final say. In the long run, this tension is impossible to square. Cameron might well come to regret leaving the law to a lawyer.
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