The Hijacking of the Human Rights Debate
September 3, 2012
A telephone call brought my recent visit to Los Angeles to a sudden end. I was to return to London by the next flight. The simmering crisis in the UK Commission on a Bill of Rights over the issue of rule by judges versus democracy had come to the boil. It was time to go ahead with the contingency plans discussed for months with senior political allies. I would announce my resignation in the Sunday Times late on Saturday night, March 10. An interview on national television would follow the next day.
Despite its grandiose title, few in Britain and even fewer in other countries will even have heard of the commission. But it is significant for the internal politics of the coalition government and raises fundamental issues about democratic governance throughout the world.
The commission was formally established in March 2011 with a mandate to report by December 2012. After a great deal of wrangling within the coalition government and various vetoes of nominees, four members were appointed by the Prime Minister, David Cameron, and another four by his Liberal Democrat deputy, Nick Clegg. The commission was to recommend whether there should be a British Bill of Rights, as the Conservatives had promised in their election manifesto. It was also to advise on reform of the European Court of Human Rights in Strasbourg to whose rulings the UK has been obliged to adhere under the terms of the Human Rights Act (HRA) passed in 1998 by a Labour government with the active input of the Liberal Democrats.
All four of the Liberal Democrat appointees and all but one of the Conservative choices were senior lawyers. As a political scientist, I was the odd man out. The announcement of the commission’s creation was held back for several days because the government found it hard to recruit a chair. After at least one person turned down the offer, the position went to the recently retired head official of the Department for Work and Pensions, Sir Leigh Lewis.
From the start, the auguries were poor. Though there had been a considerable overlap of opinion between Labour and the Conservatives in Parliament, the Liberal Democrats (with notable exceptions) were determined defenders of the post-1998 legal status quo. Clegg’s selection of appointees all but guaranteed deadlock. They included Lord Lester of Herne Hill QC, the most inveterate of human rights activists. Lester wrote in December 2011 in The Timescharacterising the HRA, in whose passage he had played a leading role, as a work of genius. It was the capstone of his career. In 2009, he lectured in terms of admiration and awe about the European Court of Human Rights as “a beacon of hope for the 800 million peoples of Europe”. Its staff were “Platonic guardians of the acquis“.
In order to protect the HRA and the Strasbourg court, he set out to divert the commission from the matter of greatest concern to the Conservatives — the sovereignty of the UK legislature. In this project, he enjoyed the backing of the chair and secretariat (civil servants of the Ministry of Justice, a department with longstanding connections with the main human rights lobbies). One of Lester’s key supporters on the commission wrote to the members advocating “headbanging” and a “reasonable exercise of brutal authority” by the chair to keep everyone in line. Thankfully, the chair did not take this advice literally. Instead, he gained his way at key points from July 2011 onwards by repeatedly threatening to resign unless the Conservative appointees bent to the Liberal Democrat line.
The first exercise in headbanging was to push through the commission a supposedly neutral paper drafted by Lester to be published as part of the commission’s public consultation. Not only were none of the consultation questions to mention the UK’s relationship with the European Court of Human Rights but we were to accept the bald statement that the HRA had left parliamentary sovereignty “unaffected”. Since this was the very matter we had been asked to investigate, acceptance of this verdict at the outset made the work of the commission fairly pointless. When I expressed this view, Sir Leigh adjourned the meeting for a conversation with me. In a basement cafeteria at the House of Lords he told me that I would be considered a “maverick” and would lose all influence on the commission unless I accepted the Lester paper.
Matters were only to get worse. My year-long experiences on this dysfunctional commission together with some other recent activities have provided a direct view of some problems of British government about which I have taught for much of my academic career. In summary, the reality is a caricature of much academic writing about the working of central government in the UK.
Consider, for instance, the behaviour of some senior civil servants. The techniques whereby the legendary Sir Humphrey Appleby overcame his political master on the TV series Yes, Minister were part of my scholarly education. I had often read about the dodges used by chairmen to get their way — control of the agenda, waiting until ten minutes before lunch to introduce the most important items and so forth. What came as a surprise was the sheer aggression with which the techniques may be deployed and with what powerful effect. At one stage, I was told in no uncertain terms that it is civil service practice that minutes of meetings may “bear no relation to” the actual proceedings they purport to record. I had no right to ask for items to be placed on the agenda except under the brief slot for “Any Other Business”, and the chair’s terms of reference whereby I could be denied that right were not available to me.
There is an accumulation of public evidence about the style in which some senior mandarins express themselves nowadays. In his final days as Cabinet Secretary, Sir Gus (now Lord) O’Donnell wrote to the chair of the Public Accounts Committee of the House of Commons, the Labour MP and former minister Margaret Hodge, to protest against her public questioning of civil servants. “There is now a serious issue,” he wrote to her, “about the way you are perceived by the wider civil service.” He warned that hearings conducted by MPs should not be a “theatrical exercise in public humiliation”. This followed an earlier incident where O’Donnell protested in strong terms to the Prime Minister about a reported briefing by a Conservative political adviser in which he characterised the chair of the Electoral Commission (and the holder of other positions) as a “quango queen”. O’Donnell’s successor apparently used divide-and-rule techniques to secure the exits from No 10 of two of David Cameron’s senior political advisers. Michael Gove is reported to have met civil service resistance to his reforms at the Department for Education.
A related reality is the powerful link between ministries and pressure groups. Here too this was something about which I had read and given tutorials to undergraduates. Once again, it was the sheer strength and near exclusivity of these connections that came as a surprise. The Ministry of Justice, which sponsors the Bill of Rights commission, is a case in point…
September 3, 2012 at 10:27 AM
We should all sit down and pay attention to what the UK has done here. It was done for “the best of reasons” and yet it can go horribly wrong.
As frustrating as a large democratic system can be, it is less dangerous than a small cabal of judges who can invalidate an otherwise legal effort by the people of that country to make laws they can all live with.
Unlike this Human Rights Court, the US Supreme Court has to consider all sides of a case of constitutional rights. The state has rights granted to it, the individual has rights the he or she may grant to others. Congress has a right to impeach justices for malpractice. There is a check and balance.
Where is the HRC check and balance?