Six questions for Chris Grayling on human rights

The Justice Secretary's assault on the Human Rights Act is legally illiterate and betrays a breathtaking ignorance of our history.

Yesterday’s speeches by Chris Grayling and Theresa May at the Conservative Party conference were like a game of right-wing reactionary bingo. All of the choice issues ticked off, one by one. And making it a full house was the old chestnut of human rights.

Chris Grayling's speech built on his Spectator interview from last week, which rehashes some lazy rhetoric on human rights. No doubt it will go down well with those in his party flirting with UKIP, and looks good in his battle with Theresa May over who can be the most anti-human rights. But it’s also legally illiterate, and betrays a breathtaking ignorance of our history and our position in the world.

As a result, I have six questions I’d like to pose to Chris Grayling:

1. Are you content to dilute individual citizens’ rights by removing their ability to petition an international court when domestic courts get things wrong?

You claim our Supreme Court should be ‘supreme’ and not Strasbourg. But would you accept that there have been very important cases over the years when our courts have not protected our citizens' rights and it has been left to Strasbourg to step up to the plate?

While I regularly praise the quality of our legal system, having the option of an international court of last resort has proven crucial to the British people on a number of occasions. Our own courts did not find British Airways’ policy of banning employees from wearing crucifixes to be illegal. Nor did our courts protect the Financial Times journalists who were forced to reveal their sources. It was left to Strasbourg to protect religious freedoms and freedom of speech.

And on anti-terror legislation, David Anderson QC, the government’s own independent adviser on terrorism legislation, recently praised the Strasbourg Court as having moderated the “more objectionable” aspects of UK anti-terror laws without decreasing the public’s safety in any way. It was Strasbourg that found Sections 44-45 of the Terrorism Act 2000 violated Article 8 (respect for private life) after our own domestic courts found no contravention.

2. Do you think those who wrote the original Convention thought time would stand still?

You regularly state that the authors of the convention would be horrified to see how it is now being used. But by claiming that, are you really saying that the court should not have ruled in cases like phone hacking, equal rights for gay and lesbian people and rights for sufferers of HIV? None of these could have been envisaged back in the 1950s, but are judgements that have nevertheless raised the standards of human rights across the continent.

3. Do you think William Hague is wrong to use the promotion of human rights as a tool of our foreign policy?

The Foreign Office is actively using human rights as a tool of our foreign policy. Look at the FCO website – it's full of promoting human rights. Hague is on record saying “there will be no downgrading of human rights under this government”, so why do you appear to disagree?

Is it your view that human rights in other countries are not important? Our influence around the globe is enormous, and we can bring great pressure to bear on those countries whose records on human rights are still lamentable. But we can only do this if we ourselves maintain an impeccable record at home otherwise we are open to accusations of duplicity and hypocrisy. Without that moral authority, it becomes more and more difficult. The Foreign Office gets this. Some of your colleagues get this. Dominic Grieve, your Attorney General, said we would become a “pariah nation” if we walked away from Strasbourg. Do you really see it as a badge of honour to join Belarus as the only other nation in Europe that is not a member of the ECHR?

4. Which bits of the Human Rights Act wouldn’t make it into your Bill of Rights?

You and Theresa May are committed to abolishing the Human Rights Act and replacing it with a British Bill of Rights. I’ve heard it so many times over the past years but it’s still meaningless unless you can outline which of the rights protected in the HRA you would jettison, or which new ones you’d include. Otherwise it's pretty vacuous nonsense. Perhaps you want to dump the right to life, or the protection against torture? Please do shed some light.

I’m guessing you’d quite like to dump Article 8 – the right to a family life. But do you realise that this isn’t an absolute right? It has to be balanced against other responsibilities and always is. Dumping Article 8 would strip our citizens of one of key protections of their privacy we have. I'm not sure you'd want to be remembered for that.

5. Do you think judges have any role in holding governments to account?

Given the cuts to legal aid on your watch, the curtailing of judicial review and the almost daily railing against human rights, it’s hard not to conclude you’d rather not be held to account by judges. If this is the case, perhaps you might explain why you think governments should not have to abide by the rule of law, yet everyone else has to? What makes governments different from its citizens?

In addition, experts who know more than you or I, point out that even if we abolished the HRA and left Strasbourg, some of the judgements you've railed against would still have happened in our Supreme Court because of case law and other international obligations. Perhaps you want to leave the UN too?

I'm on record as saying that the Strasbourg court needs to reform and modernise. The quality of the judges is an issue and more can be done to take account of each nation's unique circumstances. But I want to shape it from the inside, not turn on my heels and flounce away.

Isn't it simply the case you just want judges to do as you want? That's a system I don't want to live in - an independent judiciary creates a positive tension we should be proud of, not seek to undermine.

6. Do you believe in the universality of human rights?

There is a fear that the Tory idea of a British Bill of Rights is nothing but a hierarchy of rights, which some groups have full access to, while others have their rights limited. We know that the latter will be the marginalised, the vulnerable and minorities. Using a very small number of cases as justification for a full scale dismantling of our human rights legislation would be a disgrace and would leave many of the already downtrodden at the whim of the power of the state. Isn't it a bit odd that a political party that prides itself on being on the side of the individual citizen against the state wants to abolish one of the few mechanisms that can make that a reality?

Conclusion

There's going to be a lot more of this windy rhetoric between now and the election. Labour is determined to fight hard to protect our human rights laws; to keep the Human Rights Act and continue to be signatories to the European Convention of Human Rights. We will also stay members of the Strasbourg court and at the same time try to improve the way the European Court works. Anything less would expose our citizens to human rights abuses and let down millions abroad who look to us for moral authority.

Rt. Hon Sadiq Khan MP is Shadow Secretary of State for Justice

Justice Secretary Chris Grayling speaks during the Conservative conference in Manchester. Photograph: Getty Images.
Sadiq Khan is MP for Tooting, shadow justice secretary and shadow minister for London.
Getty.
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Who is the EU's chief Brexit negotiator Michel Barnier?

The former French foreign minister has shown signs that he will play hardball in negotiations.

The European Commission’s chief Brexit negotiator today set an October 2018 deadline for the terms of Britain’s divorce from the European Union to be agreed. Michel Barnier gave his first press conference since being appointed to head up what will be tough talks between the EU and UK.

Speaking in Brussels, he warned that UK-EU relations had entered “uncharted waters”. He used the conference to effectively shorten the time period for negotiations under Article 50 of the Lisbon Treaty, the legal process to take Britain out of the EU. The article sets out a two year period for a country to leave the bloc.

But Barnier, 65, warned that the period of actual negotiations would be shorter than two years and there would be less than 18 months to agree Brexit.  If the terms were set in October 2018, there would be five months for the European Parliament, European Council and UK Parliament to approve the deal before a March 2019 Brexit.

But who is the urbane Frenchman who was handpicked by Commission President Jean-Claude Juncker to steer the talks?

A centre-right career politician, Barnier is a member of the pan-EU European People’s Party, like Juncker and German Chancellor Angela Merkel.

A committed European and architect of closer eurozone banking integration, Barnier rose to prominence after being elected aged just 27 to the French National Assembly.  He is notorious in Brussels for his repeated references to the 1992 Winter Olympics he organised in Albertville with triple Olympic ski champion Jean-Claude Killy.

He first joined the French cabinet in 1993 as minister of the environment. In 1995, Jacques Chirac made him Secretary of State for European Affairs, teeing up a long and close relationship with Brussels.

Barnier has twice served as France’s European Commissioner, under the administrations of Romano Prodi and José Manuel BarrosoMost recently he was serving as an unpaid special advisor on European Defence Policy to Juncker until the former prime minister of Luxembourg made him Brexit boss.“I wanted an experienced politician for this difficult job,” Juncker said at the time of Barnier, who has supported moves towards an EU army.

 

Barnier and the Brits

Barnier’s appointment was controversial. Under Barroso, he was Internal Market commissioner. Responsible for financial services legislation at the height of the crisis, he clashed with the City of London.

During this period he was memorably described as a man who, in a hall of mirrors, would stop and check his reflection in every one.

Although his battles with London’s bankers were often exaggerated, the choice of Barnier was described as an “act of war” by some British journalists and was greeted with undisguised glee by Brussels europhiles.

Barnier moved to calm those fears today. At the press conference, he said, “I was 20 years old, a very long time ago, when I voted for the first time and it was in the French referendum on the accession of the UK to the EU.

“That time I campaigned for a yes vote. And I still think today that I made right choice.”

But Barnier, seen by some as aloof and arrogant, also showed a mischievous side.  It was reported during Theresa May’s first visit to Brussels as prime minister that he was demanding that all the Brexit talks be conducted in French.

While Barnier does speak English, he is far more comfortable talking in his native French. But the story, since denied, was seen as a snub to the notoriously monolingual Brits.

The long lens photo of a British Brexit strategy note that warned the EU team was “very French” may also have been on his mind as he took the podium in Brussels today.

Barnier asked, “In French or in English?” to laughter from the press.

He switched between English and French in his opening remarks but only answered questions in French, using translation to ensure he understood the questions.

Since his appointment Barnier has posted a series of tweets which could be seen as poking fun at Brexit. On a tour of Croatia to discuss the negotiations, he posed outside Zagreb’s Museum of Broken Relationships asking, “Guess where we are today?”

 

 

He also tweeted a picture of himself drinking prosecco after Boris Johnson sparked ridicule by telling an Italian economics minister his country would have to offer the UK tariff-free trade to sell the drink in Britain.

But Barnier can also be tough. He forced through laws to regulate every financial sector, 40 pieces of legislation in four years, when he was internal market commissioner, in the face of sustained opposition from industry and some governments.

He warned today, "Being a member of the EU comes with rights and benefits. Third countries [the UK] can never have the same rights and benefits since they are not subject to same obligations.”

On the possibility of Britain curbing free movement of EU citizens and keeping access to the single market, he was unequivocal.

“The single market and four freedoms are indivisible. Cherry-picking is not an option,” he said.

He stressed that his priority in the Brexit negotiations would be the interests of the remaining 27 member states of the European Union, not Britain.

“Unity is the strength of the EU and President Juncker and I are determined to preserve the unity and interest of the EU-27 in the Brexit negotiations.”

In a thinly veiled swipe at the British, again greeted with laughter in the press room, he told reporters, “It is much better to show solidarity than stand alone. I repeat, it is much better to show solidarity than stand alone”.

Referring to the iconic British poster that urged Brits to "Keep Calm and Carry On” during World War Two, he today told reporters, “We are ready. Keep calm and negotiate.”

But Barnier’s calm in the face of the unprecedented challenge to the EU posed by Brexit masks a cold determination to defend the European project at any cost.

James Crisp is the news editor at EurActiv, an online EU news service.