On the Referendum #1: Gove and the Human Rights Act

Within a day of Gove being made Justice Secretary, there is already hysterical and misleading reporting of what might happen to human rights.

The Tory manifesto said: ‘The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.’

It is being reported with dismay by some and excitement by others that Gove will now do this. The dreadful organisation ‘Liberty’ is issuing hysterical warnings. Tory hacks are rubbing their hands.

Both are very premature.

Fraser Nelson writes in his Spec blog that ‘The new Tory majority in the Commons can simply pass a vote stating that the UK Supreme Court is senior to Strasbourg.’

This is wrong except in a very limited sense.

Why?

NB. I have not spoken to MG about any of this. But I would be very surprised if before the day is out he is not told the following in his new department.

This is a very basic summary of the relevant legal situation…

1. Until we joined the EEC, all primary legislation had the same force. The common law had long ago developed a doctrine of ‘implied repeal’ meaning they would give effect to a later statute over a former. Constitutional Acts such as the Act of Union had no greater legal entrenchment than anything else. Parliament could change anything with normal legislation.

2. After we joined the EEC, the common law evolved a new idea – it dropped ‘implied repeal’ when it touched on the 1972 European Communities Act. This was a classic sensible common law approach. Parliament had said it wanted to join the EEC. The courts therefore said that they would interpret all other laws from the perspective that Parliament wanted to maintain that position. Continuing with implied repeal would have led to legal chaos.

3. Instead, the courts said that if Parliament wanted to amend or repeal the 1972 ECA it would have to do so explicitly. This made perfect sense. Parliament remained sovereign. It could repeal any previous Act regardless of international legal commitments. (Though of course it cannot change the factual existence of those international commitments with all they imply.) But it had to do so explicitly so the courts could be clear about Parliament’s intentions and avoid legal chaos. These things were argued in the courts during the 1980s in cases such as Factortame and the current legal position is set out in the judgement on the ‘Metric Martyr’ case.

4. Blair brought in the Human Rights Act to give effect to the European Convention on Human Rights. The courts extended the common law adjustment of ‘implied repeal’ to the HRA. There are now two Acts that have a ‘superior’ legal position that require explicit amending or repeal by Parliament. They have this position not because of what Parliament has said but because of what the common law says. The common law is the ultimate arbiter of Parliamentary sovereignty – an idea that has evolved since the 16th century.

5. It is therefore true that Parliament can repeal the HRA if it does so explicitly. There have been some attempts by radical lawyers to dispute this position, including in the Metric Martyr case, but English judges have so far not taken what would be a politically dynamite position of saying the courts should refuse to accept explicit primary legislation. If they were to do so, it would lead to one of the biggest constitutional conflicts in centuries. It cannot be ruled out. (Similarly attempts to curtail the scope of judicial review could also lead to a mega clash between Parliament and the courts since the courts have hitherto set the scope of JR and Parliament has not interfered. The original development of JR in the 16th century was a great blessing in the development of the rule of law and liberty in Britain and was fundamental to the superior constitutional development of Britain viz the rest of Europe. It now needs major reform but this issue is also extremely fraught, complex, and entangled with the ECA1972, HRA, and how the permanent civil service uses all this to enmesh ministers in management chaos to stop things they don’t like.)

6. However, the important question is – does the Government simply have another – ‘our own’ – human rights Act to replace the current HRA that also gives effect to the ECHR, or does it also withdraw from the ECHR itself? (I.e. does it withdraw from its international legal obligations as well as repeal domestic legislation?) If it does the former (i.e. replace the HRA with its own new version), then the current situation is simply tweaked. The courts may or may not make some small changes to how they interpret the ECHR but the fundamentals would be completely unaffected. Provided we are still committed under international law to the Strasbourg court, then we will continue to suffer from the often abysmal judgements made there. The Supreme Court will not be ‘supreme’. The situation could resemble the situation before the HRA when people went straight to Strasbourg to make human rights claims because they could not go via the English courts. This situation was worse than the current situation because the much more sensible English courts had no say on the matter and we were wholly reliant on Strasbourg (where sometimes judges controlled by Putin sit).

7. There is a further complication. The EU has its own Charter of Fundamental Rights. This is the Charter that Blair promised would have no more legal force ‘than The Sun or The Beano‘. Of course, as usual with the promises of British governments (Labour and Tory) on such issues over the years it was either deeply incompetent or dishonest. Who knows which but the Charter is there and of course it does have legal force. Further, Strasbourg judgements are used by the European Court of Justice (ECJ) in its own judgements so Strasbourg has a separate route to having legal effect in the UK and in English courts. 

This means that even if the Government were to a) repeal the HRA and b) leave the ECHR altogether cutting direct ties in international law to Strasbourg, it would still, by virtue of its continuing membership of the EU, be subject in various ways to judgements of the Strasbourg court. The Supreme Court would not be ‘supreme’. [I have edited Para 7 slightly, cf. Ps.3 below.]

There are therefore two connected very big questions that MPs and hacks need to ask.

A) Will the Government leave the ECHR so that not only will we have our own Human Rights Act but British citizens will not be able to go to Strasbourg any more than US or Chinese citizens can?

B) Will the Government roll the ECHR/Strasbourg supremacy issue into its renegotiation of EU membership in order that the manifesto promise is kept and the Supreme Court is made ‘supreme’? If not, the Luxembourg court (ECJ) will continue to impose the views of the Strasbourg court (ECHR) even if No10 takes the radical option on question A (which it probably will not), and the English courts will enforce such ECJ judgements absent explicit amending or repeal of the ECA.

I would bet the odds of both happening are less than 5%. Even if I am wrong and No10  attempts both, it is very hard to see how our membership of the EU would work such that we alone are not bound by Brussels and Luxembourg interpretations of the Strasbourg court. On this issue as on so many others to come, there is no serious half-way house that renegotiation can bring. Mandarins like Hannay and Kerr – so wrong about geopolitics and post-war history in my opinion – are, obviously, right when they point such things out.

This should make clear that Gove does not have the power to solve these problems unless No10 decides on a truly radical approach to the EU renegotiation. The answers can only come from No10 if they come at all. Liberty can calm down. Excited Tory pundits should keep their enthusiasm for radicalism in check. David Cameron has successfully played on the ignorance of MPs and the media about these issues for a decade to encourage a feeling of radicalism in some quarters while the lawyers read the actual words and know the truth.

If you want to understand the history of legal thinking over the issues of Parliamentary sovereignty and the EU/HRA, I strongly suggest you read the judgement in the Metric Martyr case. For MPs and hacks who need to understand Government proposals, you need to shell out some cash on top notch public lawyers who specialise in this area and you need to focus on the detail. The gap between the alpha lawyers and the rest on these issues is huge and worth the extra cash. These issues are much more intellectually demanding than public service reform and specialist knowledge about them is much rarer. Also, >95% of those who have the required specialist knowledge have either an ideological or financial interest (or both) in the status quo.

I was campaign director of the campaign that opposed Britain joining the euro 1998-2002. After that, decisions by a few people meant that the momentum and structure built by that campaign was – in my opinion disastrously – destroyed. A decade in which people should have been figuring out the answers to questions like those sketched above was squandered. Too many people focused on clamouring for a referendum instead of figuring out the extreme complexities of the issues. This was all the more odd given how many Eurosceptics complain that even winning a referendum in Europe has just led to another referendum. The fact that a referendum on the EU would not only be very hard to win but would also not even guarantee victory anyway has been almost entirely ignored. Why wouldn’t Whitehall and Brussels respond to an unlikely OUT victory by saying – ‘Ok, well now we’ll negotiate a new OUT deal and, of course, the people must have their say on that, mustn’t they…’?

Those who want to reverse (what I see as) the historic error of Macmillan et al deciding post-Suez that Britain had to join the EEC now have to do something that is alien to modern SW1 – build a non-party machine capable of top notch policy thinking (integrating many different forms of expertise) and communications (far beyond the level displayed by anybody in the election) that can also suppress the destructive dynamics of eurosceptic internal squabbling. None of the parties has a coherent picture of Britain’s future – their manifestos are asinine, without answers to any of the big questions of economics, technology, or geopolitics. Whitehall has no alternative to our trajectory of decline and self-delusion. (Click HERE for a long-term view of this problem.) But the challenge of winning a referendum and actually leaving the EU on good terms is even harder than fixing these problems – in one sense, it almost presupposes their partial solution. Having mostly squandered a decade, ‘the silent artillery of time’ is on the side of the status quo

Ps. Please leave corrections etc below, particularly to relevant legal links. I will blog more on these issues and link to some of the best stuff. My last blog on the EU battle and a Times op-ed I wrote is HERE (also NB. – the model of swing voter psychology applied during the last election is wrong, as I explained in this blog, and contributed to failures of prediction).

Ps. 2 [added later]. I should also have pointed out that there is another huge complication – devolution and a solution to the Scottish problem. Whatever the new Government does – whether a federal UK or not – will also affect and be affected by the HRA and broader EU issues.

Ps. 3 [added later]. The EU accession to the ECHR is complicated by this December 2014 judgement (thanks to the lawyers who speedily pointed this out as I hadn’t noticed it). The EU tried to sign up to the ECHR in its own right but this was, ironically, ruled illegal by the ECJ itself, defending its own position. However, I do not think it affects the main point. The ECJ will still apply Strasbourg judgements in its own decisions as it wishes, as it has for decades. Even leaving the ECHR entirely would not make the Supreme Court ‘supreme’ over Strasbourg, and the ECHR would continue to dominate English law on various issues via EU law and the ECJ, and English courts would enforce this absent amending or repealing the 1972 ECA. Exactly how it would work is very complicated and surely unknowable in advance. The only way for the Supreme Court to be ‘supreme’ viz the EU and ECHR is by a) repealing the HRA, b) withdrawing from the ECHR international treaty, and c) repealing or amending  the 1972 ECA to prevent the ECJ (Luxembourg) being superior to the English courts.]

Ps. 4 [added later]. Many seem to assume that Gove will behave in a similar way in the MoJ to the DfE. I think this is mistaken. The situations are very different. E.g.1 In the DfE we had prepared for the job over years including working out in secret with lawyers long before the election what the 2010 Academies Act should do. MG has had no similar preparation for the MoJ. E.g. 2 The issues are intellectually much harder. The complexities of the HRA are hard even for very clever lawyers. By comparison school reform is controversial and hard in various practical ways but does not present the same profound intellectual difficulties and subtleties. E.g. 3. MG made mistakes in how he communicated. He has doubtless learned from his experience. E.g. 4. In the DfE, very little needed legislation therefore we could largely ignore No10 and just do things. In the MoJ, the situation is different as I explain above. E.g. 5. For all these reasons and more, it would make sense for MG to go at a much more careful pace. This does not mean he is giving up / gone soft or any other lobby clichés – it just reflects that No10 is in charge of the most important thing and it is extremely unlikely No10 will even try to solve the core problems. The MoJ needs a very different approach and our approach in the DfE would be a poor guide.

Ps. 5 (added 27 May) The news today about this issue being delayed should be no surprise given the above. It strengthens my view that there is approximately zero chance of the core issues with the HRA being dealt with while Cameron is PM. Dre has made the Government look stupid by briefing around MG’s appointment that the Human Rights Act would be dealt with within ‘100 days’. Now that Dre is ‘coordinating domestic policy’, it is official that policy is a subset of crap spin in the No10 organogram and, free of Crosby’s discipline, Cameron is back to his familiar role as the nation’s UberPundit. For ten years the lobby has swallowed his spin on human rights. One advantage of today’s media car crash on this is that they may finally realise that Cameron has never had any intention of solving this problem. Self-described eurosceptics who believed him have no excuse for continuing self-delusion.

Ps. 7 Someone emails to say ‘why approximately zero?’ Because if, for example, a bomb goes off in London then the whole conventional wisdom will spin on its axis, people who gave self-important interviews about their determination to ‘protect civil liberties’ will give new self-important interviews saying ‘of course there must be sensible modifications’, polls will show >80% support for ditching the supremacy of Strasbourg etc. Precisely because Cameron has no principles, when he feels a gun is put to his head he can change his mind very fast. His party has been slow to understand this but something like a bomb would turn the debate upside down in hours. It is obviously impossible to quantify the probability of such an event (cf. the 2008 JASON study which I’ll dig out). Obviously changing such profound things in such circumstances is likely to lead to many errors particularly when a Prime Minister has no other model of behaviour than steering by the wind of the pundits.

Ps. 8 The Telegraph splash today (1 June 2015) says that Cameron has already ruled out leaving the jurisdiction of the Strasbourg court. No surprise. The No10 line that ‘Gove hasn’t made up his mind yet’ doesn’t make sense. Obviously only the prime minister can decide whether to withdraw from an international treaty, as removing the jurisdiction of the Strasbourg court requires. Gove’s job on the HRA is to punt it into the long grass then deliver a fudge that leaves Strasbourg in charge. The sensible thing for him to do is give this doomed project to a junior minister and focus on other priorities.

35 thoughts on “On the Referendum #1: Gove and the Human Rights Act

  1. Thanks, Dom. Confirmed my view of the complexity of these things.Now can you provide me with any proof of the intelligence of any Party Leaders, the British electorate or the bulk of the Civil Service?

    • ‘Looked at individually these people [parliamentary representatives] are in part very shrewd, mostly educated, regular German university culture … as soon as they assemble in corpore, they are dumb in the mass, though individually intelligent.’ Bismarck, April 1863.

    • But the ECJ still uses / applies all sorts of Strasbourg judgements though, right, so the combination of a) leaving the ECHR altogether and b) remaining in the EU would still mean that the Strasbourg court’s judgements would continue to be superior to English law and be enforced by English courts…?

  2. A lot about this, much of it written by top-notch public lawyers, is available free online to anyone who’s interested. It’s a question of whether MPs, special advisers, think-tankers and journalists are prepared to look for it and read it, rather than passing round partly-understood ideas in their own trusted circles.

    Of course it’s right for anyone reading anything written by anyone about the Human Rights Act and the ECHR to think critically about the writer’s ideological stance. That applies to those who are ideologically committed against the HRA and ECHR just as much as it does to those who are ideologically committed to defend them (or who think they are “good things” to put it in a less sinister-sounding way).

    One useful thing Conservatives could do, rather than simply dismiss lawyers’ opinions on the grounds of bias, would be to ask themselves seriously if there might just be some reason apart from bias why so many of those with specialist knowledge (including quite a few Conservatives) think the HRA and ECHR are broadly “good things”. Even those determined to make changes will learn how better to succeed if they take these people’s views seriously.

    The truth is that the Conservatives have basically won this argument already. The Strasbourg court is behaving in a more restrained way now, and our own judges are more prepared to assert themselves against it. They’ve been queueing up to make speeches saying so, and are acting accordingly (for example in the case on whole life orders). Prisoners don’t have the vote, and we now know that that won’t cost the UK anything in either damages or costs.

    But there is a lot of scope for ideologically blinkered Conservatives to take this success, muck it up and (as you suggest at one point) actually make things worse from their own point of view. To avoid this, they should engage with serious legal views, not dismiss the lawyers as a demonic, venal and treacherous cabal.

    Here’s something worth thinking about, for instance: the interpretative duty in section 3 of the HRA is not necessarily the evil many are (I think) inclined to assume. Simply repealing it could actually encourage a sort of common law judicial rights activism and lead to more clashes with judges, not fewer. Conservatives would be wise to think really carefully about this, and perhaps adjust the duty, if they must, in a much more subtle way.

    Fortunately the civil service does have outstanding EU and human rights lawyers who know the HRA and its interaction with ECHR, EU law and the common law better than anyone, and outstanding legislative drafters too. My fear is that contemporary Conservative ministers and SpAds may be tempted ignorantly to dismiss them as know-nothing public sector timeservers or as an indoctrinated Europhile fifth column.

  3. I agree with a lot of this BUT it’s always important to ask ‘cui bono?’ The financial interests of lawyers must be considered just as the (often distorting) political interests of politicos must be considered.The financial interests of any group must always be considered in the context of why they lobby for certain policies. This does not mean that the lobby does not also have good grounds for its argument.

    I think there are reasonable grounds for supporting the status quo though personally I disagree with it. Having spoken to many of the supporters of the ECHR/HRA over the last 15 years, I have been struck by the way in which many of them regard it as self-evidently absurd for us to take back powers over these things and control our own human rights laws. The attitude is similar to that which I encountered on the euro – ‘the euro is obviously good and will work, if you don’t agree you must be a (closet) Nazi’. Many powerful people in SW1 who took this view on the euro – and now try to imply they always had reservations about it! – have a similar reflexive hostility for the perfectly reasonable view that we should control human rights laws ourselves. This is one of the reasons why you see a lot of hostility.

    If you look at what I have written on these issues, you will see that I have consistently said that sorting out these problems must proceed in a disciplined rational way, based on serious analysis, far removed from the slipshod way in which David Cameron routinely deals with policy. If you think I support the way the 2010-15 government dealt with this issue, or how No10 works, you are very much mistaken!

    Opinion among MPs, Whitehall, the BBC, and lawyers tends to herd. This is normal. The conclusions of the herd often prove disastrous – cf. appeasement in the 1930s, the chances of Monnet succeeding post-1945 (when the FO treated him with amused contempt), the ERM, the euro and so on…

    • You’re assuming that lawyers arguing in favour of the HRA/ECHR have a financial interest in defending them. On the contrary, there’s broad support from across the legal spectrum. Vanishingly few lawyers have a practice which revolves exclusively around human rights law.

      • In fact, the chaos resulting from attempts to repeal these acts would probably lead to more work for public lawyers if anything!

      • No that’s not what I’m assuming. I agree there is broad support across the legal spectrum and that v few do exclusively HR.

        This support is a combination of reason and, much more powerful, the feeling that support for ECHR/HRA = ‘civilised’ and opposition to it is ‘uncivilised’, like being racist. This feeling is similar to that behind support for the euro which was greater among the best educated. Often in political matters the best educated make the worst judgements. When disaster strikes, conventional wisdom herds in a different direction.

        Humans have evolved strong feelings of group identity. The best educated express this in all sorts of moral signalling. E.g. tweeting at each other how much they hate the Daily Mail and love immigration, or expressing support for the euro and HRA. They think they are more sophisticated than those who read the Daily Mail but their moral signalling is just another form of expressing feelings that others express by cheering at football matches.

        These evolved instincts/moral signalling lie behind many disasters in which a small number of relatively influential people herd strongly behind policy X which turns out to be wrong.

        Support for Stalin in the UK is another good example of this phenomenon.

        It is better to adopt the Warren Buffet approach and force oneself to avoid imitating opinion, but this requires deliberate effort to overcome evolved instinct – for the best educated just as for the least…

        Best wishes
        D

        • “These evolved instincts/moral signalling lie behind many disasters in which a small number of relatively influential people herd strongly behind policy X which turns out to be wrong.”

          Exactly. Those convinced of the need to rid us of human rights laws are small in number but relatively very influential indeed; they have signalled to each other for years, and have herded strongly behind proposals to repeal the HRA and/or withdraw from the ECHR. They are being warned that it’s a wrong policy, but mostly just listen to each other.

          • Polls show clearly the public is part of this herd! You may be right about the merits of HRA/ECHR. I disagree with you. But the evidence is clear that the public is on my side. As you know many lawyers, particularly human rights lawyers, believe that legal protection of human rights, defined by lawyers, should trump democratic processes. I understand this argument. But I think you must accept that this view is the view of an above-averagely educated minority – a group small enough that almost no MPs or journalists understand the arguments either – it is not the view of the public! (Though there is also an anti-HRA ‘herd’ in politics/media too that can also be extremely unreflective, as all political gangs tend to be. This was my point – political argument tends to generate gangs and therefore in/out group hostility to which human rights lawyers are as susceptible as a 70IQ racist moron, though the lawyer tends to clothe his out group hostility in language that makes himself feel happier about his emotion!)
            Best wishes
            D

  4. Fair enough! I too would welcome this policy, whatever it ends up as, being developed in a disciplined rational way, based on serious analysis. And I really do see your point about conventional wisdoms often being wrong. I think you’d agree that includes conventional Conservative wisdom, too.

    The argument for remaining in the ECHR seems to me to have two aspects: values, and foreign policy.

    As far as values are concerned, I’m in favour of the UK being part of a major multilateral treaty system unless there’s something seriously unacceptable about it. That applies to the UN Convention on the Law of the Sea as much as to the ECHR. I think that’s where the UK should be: engaged, and meeting internationally-agreed standards. I think there have problems with the way the Strasbourg court has operated, but that these never reached seriously unacceptable levels (something you probably disagree with me about), and anyway may now have been corrected.

    The foreign policy argument is that it serves UK security and economic interests to promote a world based on legal principles closely related to our own traditional common law. The ECHR does not (obviously) guarantee the proper rule of law in Russia, but it is a positive influence in many countries, and has helped create a space of liberal democracy in Europe. It may even have some marginal positive effect in Russia.

    Such a system will never be perfect in terms of delivering what Britain wants each and every time. We must accept some “rough” as well as smooth. The alternative is, at least to some extent, to undermine the global rule of law approach.

    If that argument is persuasive (and I think it is) then the remaining question is whether or not you also want a domestic human rights scheme reflecting at home the international standards we abide by, and if so how it should work. We got on reasonably for decades without one, but if we do have one then the 1998 Act is a perfectly reasonable model which specifically avoids any judicial overruling of Parliament. Our judges no longer see as making the Strasbourg court “supreme”, either. The Act has, in fact, created a useful mechanism for them to assert themselves against Strasbourg, as for example in the whole life orders case.

  5. “repealing or amending the 1972 ECA to prevent the ECJ (Luxembourg) being superior to the English courts”.

    This would be impossible under EU law, the ECJ would never wear it. The only way to achieve this is to withdraw from the EU entirely.

    Did you mean UK courts rather than English courts?

    • Repealing or amending the 1972 ECA is not impossible under UK law – it is actually no harder than with any other law. It would be illegal under EU law if we had not renegotiated a different relationship. This would be a breach of our international legal obligations. However, such a breach would not affect UK domestic law, any more than any other breach of a treaty we have agreed is a breach of domestic law. Treaties only have effect in UK law if they are given effect by Parliament.

      If the government were to be serious about solving all these problems in a certain direction then it would obviously also have to deal with the international aspect too – but that is a political matter rather than a strictly domestic legal matter.

      Best wishes
      D

  6. Yes, let us consider “cui bono?” – who benefits from repeal of the HRA and any potential desertion of the ECHR? Well, let us remember that it was an ECHR judgement which led to the government of the day making phone hacking illegal under RIPA. And who benefits from potentially taking away our right not to be spied on? Well, among others, Fleet Street. The very same Fleet Street whose papers are replete with shaggy dog stories of the human rights of illegal immigrants with cats and prisoners with fried chicken. Yes, “cui bono?” indeed.

    http://ukhumanrightsblog.com/2011/07/12/was-it-human-rights-wot-won-the-phone-hacking-scandal/

    • The media is divided. By far the most important media is the BBC which is extremely strongly pro-ECHR/HRA/EU. As one of their best known political journalists described their attitude during the euro campaign, ‘We love cappuccinos and we hate racists.’
      Best wishes
      D

      • The BBC doesn’t have an opinion on it, and citing an irrelevant quote from an unnamed journalist doesn’t show they do. (Always good when you see such a quote to turn it the other way. Would any journalist ever say “We love racists and hate cappuccinos”? Of course not. Hardly then an example of bias). Besides, if the BBC did support the HRA, that would not change my basic point – the press likes phone hacking, and consequently they dislike the HRA. No political party courts the BBC during an election campaign, whereas many love to court the newspapers.

        • There is a discoverable aggregate view on all sorts of issues in all sorts of organisations. The BBC is pro-ECHR in the same way it was pro-euro – as its own inquiry into bias on the subject accepted!

          If you think political parties do not court the BBC during elections, I can only conclude you are so busy as a successful lawyer that you have no idea what political campaigns do all day! Courting the BBC is probably their single most important job as in the UK the BBC is the biggest factor in public opinion (unlike America where the media is much much less powerful because of political advertising). I am not saying this is a good/bad thing – just that these things are facts…

          Best wishes
          D

          • Well I’m not saying the BBC has no biases, merely that I see no reason to believe it does on this particular one (HRA/ECHR). You cite evidence of its own inquiry, I presume you mean by Lord Wilson? I don’t think the inquiry showed it had a “pro-euro” bias, but even if it did, that would not mean the BBC was necessarily pro-ECHR/HRA, as its a separate debate (fwiw I am pro leaving the EU, anti leaving the ECHR, unorthodox perhaps, but there you go).

            https://inforrm.wordpress.com/2015/04/25/bbc-scrutinising-the-scrutineers-part-3-julian-petley/

            I am no kind of lawyer! I am just a humble British citizen with as much right to pontificate on human rights issues as yourself, and have an innate skepticism of modern governments on issues of liberty and rights.

            Well, going on TV, chatting to journalists and trying to get you to broadcast your spin – yes, that happens with the BBC. But the BBC is not allowed to endorse any candidate, and the political parties do not try to get to the BBC to endorse them in the same way the Sun endorses a party. If you have evidence that a major politician has been trying to get the BBC to endorse them, I would like to see it. And any potential “interests” are not on the same scale as the allowed biases and commercial interests of the mainstream press. We know politicians have altered their views based on what the papers are saying – have they done the same with the BBC? That was my original point about phone hacking, after all. Is there any area the BBC benefits to a significant extent from the HRA more than the commercial press, and give an example of this benefit being used to push a politician to alter his/her agenda.

  7. Also:

    “This support is a combination of reason and, much more powerful, the feeling that support for ECHR/HRA = ‘civilised’ and opposition to it is ‘uncivilised’, like being racist”

    I would rather than argue that the more emotive aspect of the pro-HRA case is based on simple conservatism – that it is a tried and tested model to protect us from an almighty state, and we should be suspicious of any minister wanting to meddle with it. Such respectable small-c conservatism is something that sadly the modern Conservative party knows nothing about.

    • It is hardly ‘tried and tested’. The HRA regime was introduced over the past 15 years and has been controversial and unpopular from the start. This does not mean it is wrong/bad. But it is certainly not ‘tried and tested’. Rather, Britain protected human rights much better than the EU member states did historically so the ‘tried and tested’ argument, however much one values it, is clearly with the pre-HRA regime.
      Best wishes
      D

      • Well that 15 years does make it tried and tested. It sounds like a short time, but in this time it has been entangled with almost every aspect of public policy, rightly or wrongly. That makes it an institution that at least deserves the argument that “ministers don’t know what they’re messing with” being marshalled behind it.

        Also I disagree that we were better protected in pre-HRA years. To grant, for the sake of argument, that we had more liberty, it only appears that we were better protected because pre-1997 governments were much less likely to try to take core freedoms away from British citizens. I’m not alone in finding the Blair government onwards as being deeply illiberal. The HRA has been necessary to protect is from modernising governments who have no respect for British traditions like the right to a fair trial.

        • If one accepts that some sort of higher level constitutional protection for certain civil liberties is a good thing (which I do in principle), it does not follow that the ECHR/HRA combination is the best way of doing this. It is also reasonable to believe that a domestic version of the HRA with the Supreme Court actually supreme, just as with the US Constitution and Supreme Court, could protect British citizens at least as well as the ECHR does AND it would have the added benefit of democratic legitimacy – something the current system, with Putin-appointed judges opining on press freedoms, certainly does not.
          Best wishes
          D

          • I agree it’s not the *best* way of doing it. I would welcome something more on the US model, First Amendment to boot, however that would require entrenching rights in a constitution and giving up Parliamentary sovereignty as judges would be able to categorically overrule majority votes (even now Parliament can still vote to leave the ECHR if it feels like it). To me that is mostly a good thing, but you must admit it is not what is on the table with the government’s proposals. They are not suggesting an entrenched constitution.

            However, one subtle difference with the US model that I have is that it clearly has some flaws. There has been a downgrade in protection of human rights even in the United States particularly since 9/11. This hasn’t been helped by the fact that the judges are essentially political appointees, which oscillates depending on the election cycle. So one way of improving the US model is, yes have an entrenched constitution with a bill of rights, but then also allow some form of supranational accountability on the issue of abuses of state power. Things like the ECHR are a good example of this. And this goes well with the post-1945 idea that human rights are (mostly) universal in nature, and we have cross-border responsibility for this issue.

  8. Really good Article Dom.

    Its really sad how disorganised the Eurosceptic movement is at the moment,and particularly the Dominance of UKIP.

    Very sad for people who desperately want to leave.

  9. You describe well the position as it applies to those with the time and money to appeal.

    To those who have not its very much made up as they go along in the lower courts. You only have to sit in a few court cases to see how random and senseless many judgements are.

    The judiciary tend to let the side with the most expensive lawyers, the more public school clients, and closest to what could be described as a public school “think” guardian mindset… well win mostly. Its sad to watch, but any feelings of faith in the justice system have been eroded by actually watching a few real life cases.

    • Yet the supporters of a British Bill of Rights sometimes say they want to “make the Supreme Court supreme”, and even express admiration for the German Federal Constitutional Court – which really is supreme, in the sense that it can override the Bundestag.

      British Bill of Rights fans will at some point need to make up their minds whether they’re in favour of giving more power to British judges, or against.

  10. I’ve just watched Sajid Javid on Andrew Marr. He’s a poltician I greatly admire, but his performance on the Renegotiation has shown the Cameroons are completely outplaying the Out campaign.

    Sajid Javid is one of the ‘Eurosceptics’, and even he is framing the discussion in the way Cameron wants. the Out Campaign has no organisation, no plan, no media representation and agenda. If we had a hope of winning this referendum we needed to be organised and be sending our own representatives on Andrew Marr, Newsnight, Questions Time, rather than Open Europe which is Front for Tax Avoiding Multinationals.

    I’m just a member of the public, but you’ve won referenda Dom! Please do something! We need to decontaminate the Out Brand and make a positive economic case to leave! And then if we lose run candidates against the major parties at the next election.

    Cameron and Osbrone are laughing at us at the moment. The Barclay Brothers have castrated the Telegraph, the Spectator is silent, the Times will back Cameron as well as the Sun, or at the very least they won’t go hard on Cameron.

    Things are looking very bad for us.

  11. Excellent analysis.

    My only suggested amendment is to point 4. In fact, it is not a development of common law that has led the Courts to limit the application of implied repeal to any Acts incompatible with the ECHR. Rather, the Human Rights Act (HRA) itself provides for the manner in which incompatible legislation is given effect. Section 3 of the Act requires the courts to interpret legislation in such a way as is compatible with the Convention. It also recognises that some Acts and subordinate legislation will be incompatible with the Convention. So far as primary legislation is concerned (Acts of Parliament), that legislation remains in force but the High Court or above may make a declaration of incompatibility under s 4 of the HRA.

    Consequently, Acts may still be good law where incompatible with Convention rights whether or not this incompatibility is expressed (indeed, even where the Minister has declared that they are compatible before the Bill passed through Parliament).

    This is in contrast to the position of Laws LJ in Thoburn v Sutherland (2003, the ‘Metric Martyrs’ case your refer to: http://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html), in which it was he held (in the Court of Appeal) that Acts of Parliament could be given effect where inconsistent with EU law but only where those Acts expressly stated they were intended to controvene EU law. This is, however, a decision of the Court of Appeal that is obiter (ie, it refers to a hypothetical case that was not before the case) and is therefore not strictly binding. Moreover, this judgment has never been considered by the (judicial) House of Lords or the Supreme Court. It is by no means certain that Laws LJ’s judgment would be upheld in the unlikely event of such a Bill becoming law.

  12. The Lisbon Treaty made no difference to the status of ECJ rulings in the UK legal system, aside from the extension of its jurisdiction to cover those justice measures we’ve opted back in to. It certainly didn’t “introduce the ECJ as the highest court in the UK”.

  13. Carl, your certainty on this issue is surprising.

    Firstly it is the ECJ that should rule on whether the UK will be in violation of EU treaties if it withdraws from recognising the European Court of Human Rights.

    Secondly, the ECJ deals with the final legality of all EU regulations. EU regulations constitute between 30 and 60% of all UK law, depending upon whose estimate is used. It also deals with infringements of the EU treaties.

    It is the ECJ that rules on many immigration issues and it will have final jurisdiction on asylum when Article 78 (TFEU as amended by Lisbon) is implemented.

    When Article 68 is implemented the ECJ will be able to rule on whether member states’ legal systems comply with EU guidelines.

    It also rules on trademarks, intellectual property, import duties and subsidies, cross border crime, discrimination, protection of personal data and all other areas where the EU makes regulations or has competence.

    Certainly the ECJ is not the final court of appeal for ordinary criminal cases involving theft and violence although the Treaty of Functioning of EU allows the EU to take responsibilty for “area of freedom, security and justice” if the majority on the Council so wish. This would, at some future date, bring ordinary crime under the auspices of the ECJ.

    In fact Lisbon gives the EU carte blanche to rule in all areas of government, should it decide to do so. The ECJ would then be the appeal court. Give the Lisbon Treaty a quick read, it sets all of the terms necessary for full political union, should Qualified Majority Voting in the Council decide to implement such a union. There is no need for any further Treaty.

    You can find the full Treaties at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228848/7310.pdf

  14. Pingback: On the referendum #21: Branching histories of the 2016 referendum and ‘the frogs before the storm’ – Dominic Cummings's Blog

  15. Pingback: Dominic Cummings: how the Brexit referendum was won | Coffee House

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