Nineteenth Letter to the Lord Chancellor,
Lord Chancellor, Secretary of State for Justice,
Mr Chris Grayling MP,
5th October 2014,
Dear Lord Chancellor,
Here is the argument we cleverly thought of in the Pontefract bunker when the new Attorney-General joined us last week:
1. It is in the public interest for the Conservative Party to be elected to form the next Government of the United Kingdom.
2. Promising to abolish the Human Rights Act and curtail the judgments of the European Court of Human Rights will help the Conservatives get re-elected.
Ergo: it is in the public interest for human rights in this country to be abandoned.
Who could seriously argue with that simple and coherent piece of reasoning? When Lynton Crosby gave us the draft proposals Protecting Human Rights in the UK and we read them aloud to each other by candlelight in the bunker, you’ll remember you didn’t understand a word of it and the new Attorney-General looked baffled and was unable to predict what the consequences would be if the proposals were implemented. So I have had my ear to the ground, since you announced the proposals last Friday as Tory policy, and this is what I have found out.
Step 1 Abolish the Human Rights Act (HRA).
Now the overriding objective is to make British judges rather than European judges decide the law for British citizens. Before Parliament passed the HRA in 1998 British citizens had to go to Strasbourg for rulings from the European Court of Human Rights (ECtHR). The HRA brought those rights back home and allowed British judges to deal with the majority of these cases. Your proposals will reverse that and mean British citizens will have to return to the ECtHR for the rulings. This will therefore increase applications to the ECtHR and that is contrary to the overriding objective; BUT the Daily Mail and the Daily Express like it, so don’t worry.
Step 2 Make the ECtHR judgments advisory and not binding on the UK.
This means that when a British citizen takes the Government to court and wins a case in the ECtHR, the Government can choose whether to abide by the judgment or not (and whip a vote in Parliament to defeat it). Not a good example to set to Russia, Hungary and Turkey etc. who might use this a la carte method to disregard any judgments against them they don’t happen to like.
Further this UK power of veto would have a corrosive effect on the authority of the court. What football referee would permit one side to abide by the decision to give them a penalty but refuse to recognise a penalty awarded to the opposing side. Chaos! In any event it turns out that article 46 of the convention states that signatory parties (i.e the UK) contracts to be bound by the final judgment of the court. Also the Council of Europe (and its 47 members) would have the last say as to whether the UK could remain on these terms or require it to leave. The Council issued a terse press statement following the publication of the proposals: “We take note of these proposals by the Conservative Party…As they stand the proposals are not consistent with the ECtHR.” So the inevitable consequence is that the UK would be forced to leave the ECtHR.
Step 3 Destabilise the Union
Now one thing the document was silent on was Northern Ireland and Scotland. I have discovered that the Scotland Act 1998 which granted Scotland devolution enshrined the HRA in Scottish law. A spokesman for the governing SNP made it clear yesterday that Scotland would remain part of the ECtHR. Scotland is not an independent nation and the UK is the signatory party. It would be impossible for Scotland to remain in, and England and Wales out. The Good Friday Agreement states that the people of Northern Ireland shall continue to receive the protection of the EctHR. So Steps 1 and 2 would override the will of the Scottish electorate and unravel the Good Friday Agreement. Now Tories are nothing if they are not Unionists and these proposals will destabilise the union. I thought you said that the new Attorney-General had once been a lawyer?
Step 4 Once out, the UK will be the only country in Europe (apart from Belarus and Kazakhstan) outside the Council of Europe
Greece withdrew from the Council in 1969 when it was under military dictatorship; later to be readmitted on the return of democracy. Belarus is the only dictatorship in Europe at the moment. The UK would be in odd company, but who cares, if the Daily Mail and the Daily Express are on board?
Step 5 The establishment of a British Bill of Rights and Responsibilities.
(Although as we see from Step 3 this would likely be an English Bill of Rights).
The proposals for this step include:
– Curtailing some rights currently enjoyed by citizens of this country (to be defined as not serious ones).
– Modifying current rights to only those people who are deemed “responsible members of society”
Now, one of the cornerstones of human rights law is that the protection is universal and applies to all. This Step undermines that whole philosophy. What good is a right of protection against the overzealous state when the state can overrule it by simply saying that the individual has not been responsible enough to be protected from it? Dictators around the world will be impressed with this particular finesse of the British citizen’s protection. What is to stop the hanging of a gay man in Iran by the state when Iran can argue that the man is not a responsible member of it’s society (by being gay). To allow the Government to self-overrule the complaint by a citizen of the Government’s oppressive behaviour towards him is one definition of tyranny. One of the points of the Conservative party, it tells itself, is that it stands for the individual against the over mighty state. That illusion will have to be discarded now.
But I strongly advise you to ignore all the above steps and remember this: what does a spot of tyranny matter if it increases the chances of the Conservatives being re-elected at the 2015 General Election? The long cherished freedoms of the British citizen from oppression are nothing compared to the winning of a handful of marginals and the stopping of UKIP being successful in a few rainy seaside towns. If you ever feel a bit windy about it all just keep in mind the well reasoned argument at the beginning of this letter. We don’t need European judges upholding our rights, British politicians can trample on them instead. You were clever to highlight that “leading Conservative QCs” have provided support for these proposals without naming them or publishing their written opinions. Now you need to buy the Attorney and Solicitor-General Nutshell on International Law for Christmas. Leading Conservatives they may be, leading QCs they are not. Of course these proposals are legally incoherent and innately flawed, but what does the Prime Minister expect when he makes a politician and not a lawyer the Lord Chancellor? If he had wanted coherent law proposals he would have appointed someone who knew what they were doing.
Yours, ready to stop banning books and start burning them,