In the Independent on Sunday, it is claimed that Michael Gove, pondering the difficulties that scrapping the Human Rights Act would cause in Scotland and Northern Ireland, is considering not doing so at all – and bringing in an Bill of Rights to replace it in England only. And while the article reports that “the Justice Secretary has told advisers he remains determined to break the formal link between British courts and Strasbourg”, this form of words does not necessarily mean that, if the story is accurate, Gove intends Britain to leave the ECHR altogether. Parliament could instead legislate to make it clear that the European Court’s rulings are not binding in the UK.
In the Sunday Telegraph, Nick Timothy, Theresa May’s recently-departed special adviser, writes that this last course simply wouldn’t do, for three reasons:
“First, as long as we remain signatories to the Convention, British judges are likely to follow Strasbourg case law, even if the duty upon them to “take into account” the European Court’s rulings is abolished. Second, British citizens will be free to petition the European Court, which will continue to rule against the Government where it sees fit. Third, while Parliament is of course sovereign, as long as we remain a signatory to an international treaty like the Convention, ministers will continue to be bound by their obligations under international law.”
His view is that the ECHR choice that the Government must make is binary: Britain must either stay or leave – no Third Way; no fancy footwork.
The Independent on Sunday story could be wrong: Gove may already be privately set on quitting the Convention. And Timothy may simply be speaking for himself: those who know him also know that he has long-held, strong and well-informed views on Britain leaving the ECHR. The piece also marks his entry into the nefarious world of journalism, in which he may be seeking to carve out a career. But it is bound to be read as representing the view of the senior Minister that he served until only very recently – on a subject which, strictly speaking, is not hers to lead on for the Government.
This site has a bit of a history with both Timothy and the Home Secretary – on this subject at least, in the latter case. For it was at a ConservativeHome Conference that she first declared that Britain should consider leaving the Convention. This was a carefully-judged form of words that maintained Party unity on the subject: claims that she believes Britain should leave have never been convincingly denied. This site also broke the story of Timothy’s removal from the Candidates’ List after he refused to break the Code of Conduct that governs Special Advisers: he is owed reinstatement and an apology.
The new Parliament presents both a golden strategic opportunity for the Party, because of Labour’s dramatic problems in Scotland, and a Commons management headache, because David Cameron’s majority is slender. The second has the potential to overwhelm the first, if key pieces of Conservative legislation run into trouble. Gove and May have a troubled relationship – exemplified in the fracas over extremism policy and the “Trojan Horse” affair, after which he was compelled to make a public apology to her. A reheating of the ashes of their quarrels would do nothing to make carrying a Bill through the Commons and Lords any easier.
What should it say? The view of Party members seems clear, at least if our monthly surveys are anything to go by. They agree with Nick. “Leaving the ECHR” was the third top priority they set out when we asked in 2013 about “red lines” in any future Coalition negotiations. It was outpolled only by the In-Out referendum and holding a renegotiation.