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Human rights laws: supremely serious judgment Human rights laws: supremely serious judgment
(7 months later)
Britain's judges have traditionally disliked involving themselves in public controversy almost as strongly as Britain's politicians wish the judges would keep their criticisms firmly under their wigs. That is why Tuesday's Guardian interview with the president of the UK supreme court, Lord Neuberger, is such an important and even astonishing event. The wigless Lord Neuberger warns that, in order to deport unwelcome terrorist suspects to lands where basic rights may not be observed, Britain risks having to withdraw not merely from the European court of human rights but also even from the United Nations. This is a formidable challenge to the government in general and to Conservative ministers in particular to weigh their options with great care. It needs to be taken with the utmost seriousness.Britain's judges have traditionally disliked involving themselves in public controversy almost as strongly as Britain's politicians wish the judges would keep their criticisms firmly under their wigs. That is why Tuesday's Guardian interview with the president of the UK supreme court, Lord Neuberger, is such an important and even astonishing event. The wigless Lord Neuberger warns that, in order to deport unwelcome terrorist suspects to lands where basic rights may not be observed, Britain risks having to withdraw not merely from the European court of human rights but also even from the United Nations. This is a formidable challenge to the government in general and to Conservative ministers in particular to weigh their options with great care. It needs to be taken with the utmost seriousness.
It is nevertheless hard to think of a challenge with more destabilising implications for relations between government and the judiciary. Lord Neuberger must have given considerable thought to his words before uttering them. That he said what he did is therefore evidence of the depth of the anxieties felt by senior judges about the way ministers are increasingly tempted to defy not just the European human rights court, and thus the UK courts which defer to European rulings, but also the international treaties and conventions to which the UK is a signatory — and which in many cases were drafted by British lawyers. It suggests that relations between ministers and the judges are in an unhappy state. There is a great deal at stake here for the working of the rule of law. One side or the other is going to have to back down. Serious politicians should therefore think very carefully indeed before they choose how to respond.It is nevertheless hard to think of a challenge with more destabilising implications for relations between government and the judiciary. Lord Neuberger must have given considerable thought to his words before uttering them. That he said what he did is therefore evidence of the depth of the anxieties felt by senior judges about the way ministers are increasingly tempted to defy not just the European human rights court, and thus the UK courts which defer to European rulings, but also the international treaties and conventions to which the UK is a signatory — and which in many cases were drafted by British lawyers. It suggests that relations between ministers and the judges are in an unhappy state. There is a great deal at stake here for the working of the rule of law. One side or the other is going to have to back down. Serious politicians should therefore think very carefully indeed before they choose how to respond.
Lord Neuberger's warning has old roots but recent causes. It is the result of a combustible collision between two increasingly unmanageable problems. The first, which pits human rights against the supposed interest of the state, is the UK's position as a bolthole for undesirable terrorist suspects who are fighting deportation to countries where their human rights – like the right to a trial untainted by torture and other abuses – are at risk. The second is the Conservative party's increasingly visceral alienation from international institutions, especially those in which the word Europe occurs. Tory leaders were frequently instrumental in establishing these institutions and conventions in the postwar era, yet today's Tory party and press increasingly dreams of withdrawal from such obligations behind a Little England raised drawbridge.Lord Neuberger's warning has old roots but recent causes. It is the result of a combustible collision between two increasingly unmanageable problems. The first, which pits human rights against the supposed interest of the state, is the UK's position as a bolthole for undesirable terrorist suspects who are fighting deportation to countries where their human rights – like the right to a trial untainted by torture and other abuses – are at risk. The second is the Conservative party's increasingly visceral alienation from international institutions, especially those in which the word Europe occurs. Tory leaders were frequently instrumental in establishing these institutions and conventions in the postwar era, yet today's Tory party and press increasingly dreams of withdrawal from such obligations behind a Little England raised drawbridge.
Neither of these problems is new, but they have been given fresh explosive potential by the unresolved Abu Qatada case on the one hand, and by the Eastleigh byelection result on the other. The lurch to Ukip at Eastleigh last week has caused Tory leaders to raise the stakes on immigration from Romania and Bulgaria as well by suggesting forceful unilateral measures against international human rights laws in the next Tory election manifesto. It has also, by weakening David Cameron, tempted ministers with leadership ambitions into the open. Lord Neuberger gave his interview before both Chris Grayling and Theresa May trailed their coats in the media at the weekend. But his words will inevitably be seen as a rebuff to them and as a warning to ministers in general about where things could now be heading. Lord Neuberger's words may be intended to calm the current mood, but there is a real danger they will provoke it still further.Neither of these problems is new, but they have been given fresh explosive potential by the unresolved Abu Qatada case on the one hand, and by the Eastleigh byelection result on the other. The lurch to Ukip at Eastleigh last week has caused Tory leaders to raise the stakes on immigration from Romania and Bulgaria as well by suggesting forceful unilateral measures against international human rights laws in the next Tory election manifesto. It has also, by weakening David Cameron, tempted ministers with leadership ambitions into the open. Lord Neuberger gave his interview before both Chris Grayling and Theresa May trailed their coats in the media at the weekend. But his words will inevitably be seen as a rebuff to them and as a warning to ministers in general about where things could now be heading. Lord Neuberger's words may be intended to calm the current mood, but there is a real danger they will provoke it still further.
In the end, parliament makes our laws and the judges interpret them. But it is against principle and the national interest to withdraw from the European convention on human rights or from epochal UN treaties against torture and other abuses. It is shameful that so few Tories except Kenneth Clarke now speak up for universal rights. But Tory politicians are living in a fantasy land if they think that lawmaking in their Little England would be able to ignore international human rights. The rule of law and human rights, thank goodness, are bigger than the Conservative party.In the end, parliament makes our laws and the judges interpret them. But it is against principle and the national interest to withdraw from the European convention on human rights or from epochal UN treaties against torture and other abuses. It is shameful that so few Tories except Kenneth Clarke now speak up for universal rights. But Tory politicians are living in a fantasy land if they think that lawmaking in their Little England would be able to ignore international human rights. The rule of law and human rights, thank goodness, are bigger than the Conservative party.
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