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GRIEVE DOMINIC NW

“The problem with Dominic is that he fetishises the rule of law,” a senior Minister once told me, when the former Attorney-General was embroiled in one of his tireless internal party battles over Britain’s relationship with the European Court on Human Rights.  To which Grieve would doubtless reply that the rule of law is a bedrock of parliamentary government, and that devotion to it can hardly be labelled excessive.  Indeed, this is the sum of his interview in today’s Times (£), in which he firms up reports that Number 10 is seeking a halfway house between leaving and staying in the ECHR.

“What actually is being suggested is not that we will leave the ECHR, but that we will announce for our manifesto that we will pass primary legislation to use parliament to prevent the government from implementing its international obligations, except when parliament rules when we should,” he tells the paper.

“Of all the ideas I have heard about, that strikes me as just about the worst of all,” he continues. “It may appear superficially attractive, but it is effectively driving a coach and horses through international legal obligations, behaving in a way that can only be described as anarchic. It creates massive uncertainty and it risks a legal road crash.”  Grieve also implies a comparison between David Cameron and Putin: “It’s not dissimilar from Putin using the Duma to ratify his annexation of the Crimea. Putin will say, well it’s now lawful; the Duma has said so.”

It is important to remember that nothing has yet been announced about the next Conservative manifesto and the Court.  I was told last year that the policy might be unveiled during spring.  It is high summer and there has been no news.  The most likely reason for this is that a commitment will be made during the Conservative Conference – or, at least, that has probably been the plan until now.

For a consequence of Grieve’s dismissal is that Downing Street will now find it hard to stick to any such timetable.  Few are better-placed than the former Attorney-General to know what the policy is shaping up to be (though since Downing Street apparently tried to hide from him a paper on the matter he might not have seen the most up-to-date draft).  The Times refers to him beginning an “offensive” on the matter – in other words, to continue spilling the beans. Grieve is thus wrecking, or at least degrading, the surprise value of any autumn announcement.

Number Ten may thus have to bring it forward and make the best of a bad job.  Either way, Grieve’s campaign is yet another reminder of the baleful consequences of the reshuffle for David Cameron – though it will be argued, I think correctly, that if the Prime Minister wants a fundamental policy shift on the Court he had little choice but to look for a new Attorney-General.

However, this is not to say that this policy, as described by Grieve, is right – or even lawful.  Essentially, the choice over the Court is whether or not to remove ourselves from its jurisdiction.  This is not to say that Parliament should refuse to dig its heels in over specific issues, such as votes for prisoners.  MPs are right to reflect the anger of their constituents over a politicised court deploying judicial creep.  But for MPs to vote freely is one thing; for a government to deny its obligations is another.  Cameron can’t have his ECHR cake and eat it.

For a government to legislate effectively to defy the court’s rulings while continuing to recognise its authority would be a contradiction in terms, and Grieve is correct to point this out.  This returns us to the choice between staying and leaving.  Leaving the convention is not to be confused with embracing tyranny.  We were a free country before that date when others were living under dictatorships.

However, this is probably not the view of most voters.  The most practicable way forward would be to enshrine the convention rights in a British Bill of Rights and let our own judges rule on them.  That this solution would be consistent with leaving the EU in order to escape the reach of the European Court ruling on the Charter of Fundamental Rights is an additional attraction.  Grieve’s Putin comparison is risky, given current circumstances.  But his stress on the rule of law is right, even if his particular solution – continuing the status quo, more or less – is wrong.

89 comments for: Grieve suggests that we can’t both be in and out of the ECHR at the same time. He’s right.

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