I have no interest in dredging through the judgments in the case infelicitously referred to by the Home Secretary in her Conference speech and the media’s reporting of them; if you’re interested, there’s a good account here. The story demonstrates something else which I think is more important. That there are at least two serious issues where the Conservative part of the coalition government is happy to wade in but without offering an actual answer. Human Rights is one of these and the other is membership of the EU. What these two issues have in common is that they are major areas in which there is a conflict between a system with an unwritten constitution where Parliament is sovereign and systems where the sovereignty of Parliament is subject to the jurisdiction of Courts and judges.
The Human Rights Act and a British Bill of Rights
On Human Rights, the “catflap” masked the real issues. The Conservatives campaigned in the last General Election on the basis of repealing the Human Rights Act (HRA) and replacing it with a British Bill of Rights. Now, it is possible that there are no genuine criticisms of the HRA so this is a bad policy. However, the debate on the issue on the BBC’s Question Time on 6 October 2011 showed that most of the people on the panel and in the audience in Salford had reservations about the scope and content of human rights and how they should best be treated in English Law. Much of this debate was, admittedly, rather ill-informed. That does not mean that there should not or could not be a debate. The problem is that I suspect the government does not really know what would be in a British Bill of Rights or how it would look. It is more politically expedient to run a campaign without any specific end-point which allows for there to be someone or something to blame for the “mad” stories that come out in the tabloid press, like the one about Maya the cat and whether owning her meant it would be a breach of the HRA to send a Bolivian student who had outstayed his visa back to Bolivia. It is a bit 1984 – a shadowy enemy of reason is built up and made to be the target of a regular two minute hate.
It is quite possible to take the view of human rights as being nonsense upon stilts without being a barbarian. It is also perfectly possible to think the HRA is a bad piece of legislation without denying the importance of human rights and their protection in the UK. Perhaps it was unnecessary to make enforcement of the provisions of the European Convention on Human Rights (ECHR) possible in the courts of the UK – is the UK really a more civilised place with a better record on human rights now than it was prior to the HRA? Back in those dark days the UK was still a signatory of the ECHR and its provisions could still be applied, albeit in a more laborious and costly way.
At least from the press coverage (which of course is very partial and not particularly well informed) it would seem that the sorts of legislative acts that have been reviewed most often under the HRA are recent measures which ought, if the HRA had a normative effect (ie it altered the approach of the State to take proper account of human rights issues), to have been considered when passing the measures into law or policy. Older legislation which was passed without the direct need to consider the application of the HRA somehow seems to be less often challenged. Although, as an aside, I remember from my time in the DTI that the ECHR was something that was considered when putting together legislative proposals well before the HRA.
So, if discussion about the madness of the HRA is to happen, it needs to be on the back of some concrete proposals about precisely what is wrong with it as legislation and what needs to be done to address that. Not silly and factually misleading anecdotes from the Daily Mail. My suspicion is that the sorts of change that would ultimately be proposed are going to be technical and not very easily communicated or understood by ordinary people. Silly soundbites are more effective ways of doing nothing very much.
Membership of the EU
Membership of the EU is another similar topic. There are good arguments on both sides. At the same time there is at least a significant minority who are opposed, whether for good or bad reasons to continuing membership. Yet the Conservative leadership of the government tries to sit on the fence. Partly this is political and practical – being too overtly in favour of withdrawal would make remaining in coalition with the europhile LibDems rather difficult. The problem here is that there is no real consensus on what those on the right would do if they were to be granted their wishes – that is, not only to have a referendum on whether to leave the EU but to win it. There’s no coherent plan or dream about what we could do if only we weren’t part of the EU.
So, there’s unlikely to be any real clamour for a referendum on the issue from anyone who might actually deliver one. None of the three main parties has an agenda that it is itching to put in place if only it weren’t for that pesky EU (although Labour could most easily come up with one but shows no signs of doing so). As an issue it is barely of more interest to the general public than the tedious AV referendum all the time that there is no-one holding out a credible plan for how life would be improved in practice were we to cease to be members. A sign of how close this parallel is can be seen in the number of “anti-EU” campaigners who advocate proposing to join EFTA (or more accurately the EEA) as being a way of getting the free trade area that “we” (or rather, a generation of people who are almost entirely over 60 today) voted for. Quite how they think that joining Club Liechtenstein will enthuse the masses escapes me.
The constitutional conflict
In both instances the real problem is that conservatives ultimately believe that the British “way” is a better one. That we have survived and prospered for hundreds of years on the basis of an unwritten constitution where politicians and Parliament have been sovereign is the basis for this belief. There’s a recognition that both the HRA and membership of the EU import an alien political and constitutional culture by eroding that notion of Parliamentary sovereignty in its strongest sense. That is, the sense in which what Parliament has decreed, on the basis of its democratic legitimacy, is not to be subject to undemocratic review by either domestic or foreign Courts or officials. Of course, there is still a weaker form of Parliamentary sovereignty in that it is not disputed that Parliament could repeal the HRA or determine to withdraw from the jurisdiction of the EU institutions.
The exercise of this weaker form of sovereignty is what is sought by UKIP and those who do not want the HRA or the ECHR to apply so as to bring back the stronger form of sovereignty. The government, perhaps driven by pragmatism, doesn’t want to be so very assertive but rather to try to find a way of mitigating the weakness of the sovereignty that it has so that it does not have effects which are so offensive to its broader belief that it should be in charge of more things.
Politicians, if you want to do something, tell us exactly what and why. If you believe that it is fine in principle for the UK’s democratic institutions to continue to delegate and cede their sovereignty to the Courts and EU institutions then say so. If you believe that we have made a mistake in outsourcing these issues then say so. If you believe that in principle these changes ought to be made but that you have nothing concrete or attractive to put in their place when exercising the sovereignty that would be thereby returned, we need to know so that we can choose someone who has a better idea about what they would do. Make your choice openly. Then go and do it. Don’t insult everyone’s intelligence by sounding as if you’re interested in an issue, bang on about it and then do nothing.