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.