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David Cameron versus the human rights court: a populist hit

The Tories are preparing to take on the European Court of Human Rights, in what could be their most significant populist hit before the next election.

The European Court of Human Rights. Photo: Mathieu Nivelles/Flickr

It began with cabinet departures. Former Attorney General Dominic Grieve and veteran Conservative frontbencher Ken Clarke left the government during this week’s reshuffle. It has been described as the cull of the Tory left – but more specifically with these exits, the PM has evicted two influential, weighty figures at the cabinet table who supported Britain’s EU membership, and it being signed up to the European Convention on Human Rights.

Now he’s rid of the euro-moderates, David Cameron seems to have cleared his way to all-out war on a European institution to which Britain is signed up aside from the EU: the European Convention on Human Rights. The BBC is reporting this morning that his party is drawing up plans for a new law designed to limit the power of the European Court of Human Rights and to make parliament the ultimate legal arbiter over human rights matters.

Clarke and Grieve were sceptical about tampering with Britain’s relationship with the human rights court. Clarke called Theresa May’s conference speech in 2011 – in which she claimed a Bolivian man was allowed to stay in the UK because of his cat ­– “laughable and child-like”. He said yesterday on the Today programme that it was “unthinkable” for us to leave the European Convention on Human Rights, labelling it the “bedrock” of the rule of law, individual liberty and justice for all. Grieve also was dubious about Cameron’s plans, reportedly (from the BBC’s Nick Robinson this morning) warning his colleagues that the plan, and its alternative – a British Bill of Rights – would be a “legal car-crash”, albeit one “with a built-in time delay”.

But senior ministers who have retained their positions, such as Home Secretary Theresa May and the Justice Secretary Chris Grayling, have long been critical of the human rights court, battling with the court on a number of cases including prisoners’ right to vote, deporting terrorist suspects, and deporting foreign criminals and racists. The right to a family life, ruled by the judges in Strasbourg, is often the stumbling block for such cases.

A group of Conservative lawyers recently presented the PM with proposals for new legislation that would assert parliament’s power over the power of the human rights court’s judges. Their plan is not to leave altogether, but to be able to disregard the court’s rulings. A sort of cherry-picking that Grieve, while he was still in his job, warned would create a “degree of anarchy”.

It’s clear why this is an attractive plan for Cameron. As the Guardian points out, it will allow him to hit immigration, crime and the tyranny of Europe all in one go – and if he can deploy more individual stories, like May’s cat anecdote (although it was inaccurate), he can use his plan to capture the imagination of an electorate already primed with horror stories about immigration.

However, though it may be a populist policy, it could ultimately do little for parliament’s so-called “sovereignty”. I interviewed the criminal lawyer Michael Mansfield QC last summer, and he pointed out that recent high-profile cases, such as that of attempting to deport radical cleric Abu Qatada, would be just as difficult without the European Convention.

He told me:

English Common Law, on which the Convention was based, actually itself embraces the same rights. For example, there would have been the same difficulty with Abu Qatada without the European Convention; it has everything to do with English law itself saying to the government ‘we are not happy that any process has the risk of being tainted by tortured evidence’. It’s an English principle. We’re not dealing here with trivial rights, we’re dealing with fundamental situations. Is there an English right to life that is different to everybody else’s?