On Wednesday night, GBNews revealed a stack of documents from the point at which the United Kingdom brought the European Convention of Human Rights into domestic law.
It is not surprising that one of the main contributors was Keir Starmer, who wrote a book that runs to about 1000 pages on the subject, but whose words were considered so important that a chapter was extracted from it and circulated at a seminar of Legal Eagles. In some ways, this is obviously old news, but it is a useful reminder of where the Prime Minister comes from and what his ideological bent is and always has been.
It also, as with Britain entering into the European Economic Community, subsequently the EU, is a reminder of the duplicity of the establishment. It is another case where the elite wanted a change but were not willing to explain the full ramifications to the public while they were quite clear about them to themselves.
Throughout the documents, the legal minds recognised that the legal system that had served the country well for hundreds of years was being ripped up. The statements made to Parliament, on the one hand, were bland reassurances that it was merely a formalisation of existing rights and that it was surely better for British judges to rule than the cases to have to go all the way to Strasbourg.
What was in truth occurring was that Parliamentary sovereignty was being replaced. This was set out very well in a pamphlet by Lords Lester and Pannick. There was also much discussion of the concept of the “margin of appreciation”, which allows domestic government some leeway over the jurisdiction of the European Court of Human Rights, and Starmer covered this matter in his essay.
He made it clear that this only lay with Strasbourg and the UK courts, in the context all lower ones and subordinate to Strasbourg, did not have the discretion to apply the margin of appreciation. He wrote, at the time, that “Primarily, it is the duty of the domestic authorities to secure and protect Convention rights... The role of the European Court is different. It is primarily concerned with supervision... Domestic courts and tribunals are part of the system for the domestic protection of human rights. They are specifically recognised under the HRA as public authorities and, as a result, it is unlawful for a court or tribunal to act in a way that is incompatible with Convention rights. In other words, domestic courts do not have the same role as the European Court, i.e., supervising the domestic system for protecting human rights. They are part of the very system. As such, there can be no question of applying the margin of appreciation in their own decision making.”
This means that the government’s legal advice, which requires Ministers to follow the law, will always be obliged to advise without a democratic override that even the Strasbourg Court admits is permissible. It was a tightening of the screw, a turn of the ratchet to enforce the European concept of rights in this country.
It utterly undermines the assurance given in the House of Lords by then Lord Chancellor, Lord Irvine of Lairg, that United Kingdom courts may “depart from existing Strasbourg decisions, and upon occasions it might well be appropriate to do so, and it is possible that they might give a successful lead to Strasbourg”.
In fact, the reverse is true. The British courts would always have to apply a stricter rule than Strasbourg, which has a limited degree of discretion to accept democratic decision-making. Thus his slightly later words, “when it is relevant, we would of course expect our courts to apply convention jurisprudence and its principles to the cases before them”, are much more significant and realistic. Our courts were intended to be bound hand and foot, and ministers too, by the overarching force of the Convention. Labour knew this in 1998, but tried to indicate otherwise.
Another area where bland assurances were given was in relation to the idea of horizontal rather than vertical rights. The government of the day made it clear that the Human Rights Act created vertical rights, that is to say, ones that related to the government and public bodies in relation to their dealings with citizens. They did not, according to statements made in the House of Lords, create horizontal rights between citizens and each other, or with private bodies.
Yet the documents show very clearly that this was known to be untrue, as the courts count as public bodies and had to offer the rights under the Act and make judgments accordingly. Thus, creating widespread horizontal rights as well as vertical ones.
Specifically, Lord Irvine of Lairg assured Lord Wakeham that these horizontal rights could not be used to create a law of privacy which would undermine the freedom of the press. This has proved to be false, as a right to privacy now stops the media reporting stories of misbehaviour by public figures, allows for superinjunctions, and has effectively muzzled the free press from printing stories that have interest to its readers about celebrities' private lives.
This is a real scandal, as Parliament never dared to introduce a specific privacy law because it feared the public's reaction. It knew that voters would think that such a law would merely protect political miscreants, as has happened on the continent. Instead, it was done by sleight of hand through the HRA, which allowed judges to develop a privacy law that has crushed press reporting of scandals.
Even when I visited an illegal migrant camp in Somerset, GBNews lawyers had to consider the privacy rights of the inmates, and faces were, therefore, blurred. This is not press freedom but censorship that makes reporting harder and does no service to the public.
The government knew this was the probable outcome and failed to admit it. A classic example of using international bodies to cover up problems that are too unpopular to deal with at home. Similar papers circulated in government in the 1960s in relation to the consequences for parliamentary sovereignty if we joined what was then the European Economic Community. Again, these were not admitted to when the European Communities Act 1972 went through the two Houses.
This matters because the constitution was changed without the consent of the people. In their fascinating paper, Lester and Pannick discussed the traditional understanding of how the law worked, writing that “The liberties of the subject are merely implications derived from two principles. The first principle is that we may say or do as we please, provided that we do not transgress the substantive law, or infringe on the legal rights of others. The second principle is that public authorities (including the Crown) may only do what they are authorised to do by some rule (including the Royal Prerogative), or by statute.
This encapsulates the fundamental point that the King is subject to the law set out by John Fortescue in the 15th century. Changing this to a system of rights-based legal philosophy changed the relationship between the subject and the Crown, created rights for foreigners in the UK and, even more importantly, it affected the balance between the law and the democratic organs of society.
The rights of the majority were watered down and replaced with the rights of a succession of minorities. Previously, their rights have been protected by convention and the recognition by governments with large majorities that one day they might too be in opposition, and the processes in Parliament which slow down the implementation of new laws, which ensures public knowledge and debate, and often changes the Bill during the proceedings. This was all known at the time and set out in dry but learned papers produced by lawyers including Sir Keir Starmer.
What GBNews revealed is that they were fully aware of what was being done, obfuscated in Parliament and pushed ahead because they preferred the administrative to the democratic state. Now the consequences are clear for all to see. The Living Instrument doctrine adopted by Strasbourg judges themselves, without any authority and the acceptance of the supremacy of ECtHR rulings, has trumped democratic accountability in government. Ministers are hamstrung and the Commons unable to legislate in the national interest.
There is no possibility of internal change, which has been tried before and is merely a smokescreen to maintain the current system long enough to outlive a government hostile to the whole concept. With great cunning, the left lured the country into a new constitutional settlement that was intended and has succeeded in promoting their world view, even when they are out of power, while protecting it from popular attack when they are in power.
As with the sacrifice of sovereignty to join the EEC, they knew what they were doing, and that it could only be done by prestidigitation, as the electorate would not accept it otherwise. Now it has been so thoroughly exposed, it must be utterly excised and, as the laws of Cromwell were burned by the public executioner at the restoration of Charles II in 1660, so the ECHR settlement must be reduced to ashes.
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