John Rentoul: A pincer movement on No 10

The PM is caught between Kenneth Clarke, Nick Clegg, and the legal establishment on one hand, and the Tory party on the other

Share
Related Topics

"I am appalled by the Supreme Court ruling," David Cameron said during Prime Minister's Questions on Wednesday. "It is about time we started to make sure that decisions are made in this parliament rather than in the courts."

It is the lot of prime ministers to chafe at the constraints of the rule of law. Tony Blair once sounded like a Ukip-voting taxi driver at one of his monthly news conferences as he railed against what lawyers (of whom he is one) would call due process: "By the time you have filled out the forms, done the statements, got them to court, three hearings, they have got defence lawyers and all the rest of it - forget it."

At other times he and his home secretaries talked of "revisiting" or even "repealing" the Chahal judgment of the European Court of Human Rights that would not allow the UK to deport a suspected terrorist. Which, needless to say, could not be done.

But that was towards the end of Blair's 10 years. Twice already in his first nine months Cameron has proclaimed his frustrating powerlessness at the dispatch box. His appalledness at the ruling on the right to appeal against being put on the sex offenders' register last week followed his confession in November that the European Court of Human Rights ruling, that some prisoners should have the vote, made him "physically ill".

What makes this more combustible is the repressed Euroscepticism of the modern Conservative Party. Yes, we all know that the European Convention on Human Rights, drafted by British lawyers, signed by the Attlee government in 1950, and incorporated into UK law by the Human Rights Act 1998, is separate from the European Union. But it is a supranational legal constraint ultimately decided on the Continent, and so it taps into the same emotional responses. Emotions that run strongly among Tory MPs, who voted by 165 to one (Peter Bottomley) against votes for criminals, with ministers abstaining.

The way in which Cameron has dealt with the constraint and the pressure typifies an emerging pattern. On votes for criminals, first he said he didn't like it but had to do it. As Kenneth Clarke, the Justice Secretary, drew up plans to give the vote to prisoners serving sentences shorter than four years, Sadiq Khan, his Labour shadow, made his move. In the first attempt by the Opposition under Ed Miliband to attack Cameron from the populist right, Khan suggested cutting this to sentences under 12 months. Miliband took fright and dropped the subject, but by then the Tory revolt was in full flood.

Cameron went with the flow. He allowed his MPs a free vote, and started to look at the options for telling the judges that he'd love to help but his MPs wouldn't let him. The Government sought legal advice on what would happen if it failed to comply with the ruling. The Times, which obtained the document last week, a top-quality, 22-carat, gold-plated leak, highlighted the bit that said the court couldn't force a country to comply: "It seems highly unlikely that the UK would face anything more than criticism at a political level if it tried to implement the judgment and failed (due to inability to get legislation through Parliament)."

The problem is that the Government still has to try, and cannot get out of this case even by the drastic step of repudiating the Convention, because that could not be retrospective. All that the Government can do about past cases is delay, but it has to pretend it is doing something about them, which is difficult when the Prime Minister has said he doesn't want to.

Nor does that stop new cases getting on to the conveyor belt. That's why last week's ruling on the sex offenders' register matters. It means that Cameron is being pushed, quite quickly, to the point where he has to decide whether to reject parts or all of the European Convention. Some Tories thought, when Cameron said the commission to draw up a new British Bill of Rights would be set up "imminently", that he had "crossed the Rubicon". I am not so sure.

Tony Blair talked about it but never did it. His home secretaries, including Jack Straw (barrister, former home secretary and co-author with David Davis of the rebel amendment on votes for criminals) looked at the same sort of legal advice as was leaked last week. Charles Clarke even legislated to opt out of a part of the Convention. Clarke drafted the law on control orders for terrorist suspects, some categories of which would have required the UK to "derogate" from the Convention, but the provision was never needed.

Blair's complaints about judges extending the Convention beyond the intentions of its drafters came to nothing. The reason being that it is impossible in practice to limit the scope of the Convention without junking it altogether (there is no provision for "derogating" from the bit on the right to vote, for example).

Yet Blair's second thoughts about the Human Rights Act, which he brought in, changes the balance of forces. A chunk of the liberal elite has changed sides. Straw mused about rewriting the Act, just as Cameron does now. Earlier this month Lord Hoffmann, the retired Law Lord who had been critical of Blair on civil liberty, renewed his attack on the European Convention and the way it has been interpreted. "The very concept of human rights is being trivialised by silly interpretations of grand ideas," he wrote. Some decisions "would have astonished those who agreed to our accession to the Convention in 1950".

Therefore, just nine months in, Cameron is between a rock and a hard place. The rock is Kenneth Clarke, Nick Clegg, most of the legal establishment, and the diplomatic embarrassment of appearing to repudiate "human rights". The hard place is the Conservative Party, including Cameron's own instincts, and public opinion, including previously supportive elite opinion typified by Blair, his home secretaries and Lord Hoffmann.

So who do you put your money on: immovable object or irresistible force?

twitter.com/JohnRentoul; independent.co.uk/jrentoul

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Ashdown Group: IT Support Technician - 12 Month Fixed Term - Shrewsbury

£17000 - £20000 per annum: Ashdown Group: IT Helpdesk Support Technician - 12 ...

The Jenrick Group: Maintenance Planner

£28000 - £32000 per annum + pension + holidays: The Jenrick Group: Maintenance...

The Jenrick Group: World Wide PLC Service Engineer

£30000 - £38000 per annum + pesion + holidays: The Jenrick Group: World Wide S...

The Jenrick Group: Project Manager

£35000 per annum + Pension+Bupa: The Jenrick Group: We are recruiting for an e...

Day In a Page

Read Next
A hawk is seen resting in a tree in the Florida Everglades on August 11, 2011 in the Everglades National Park, Florida. The Obama administration announced it will pump $100 million into Everglades restoration. The money will go to buy land from ranchers as much as 24,000 acres - some 37 square miles - in four counties northwest of Lake Okeechobee and preserve them under permanent conservation easements.  

Nature Studies: My best nature books of 2014

Michael McCarthy
 

My Christmas Quiz: What are you – a festive curmudgeon or top of the tree?

Grace Dent
Surrounded by high-rise flats is a little house filled with Lebanon’s history - clocks, rifles, frogmen’s uniforms and colonial helmets

Clocks, rifles, swords, frogmen’s uniforms

Surrounded by high-rise flats is a little house filled with Lebanon’s history
Return to Gaza: Four months on, the wounds left by Israel's bombardment have not yet healed

Four months after the bombardment, Gaza’s wounds are yet to heal

Kim Sengupta is reunited with a man whose plight mirrors the suffering of the Palestinian people
Gastric surgery: Is it really the answer to the UK's obesity epidemic?

Is gastric surgery really the answer to the UK's obesity epidemic?

Critics argue that it’s crazy to operate on healthy people just to stop them eating
Homeless Veterans appeal: Christmas charity auction Part 2 - now LIVE

Homeless Veterans appeal: Christmas charity auction

Bid on original art, or trips of a lifetime to Africa or the 'Corrie' set, and help Homeless Veterans
Pantomime rings the changes to welcome autistic theatre-goers

Autism-friendly theatre

Pantomime leads the pack in quest to welcome all
The week Hollywood got scared and had to grow up a bit

The week Hollywood got scared and had to grow up a bit

Sony suffered a chorus of disapproval after it withdrew 'The Interview', but it's not too late for it to take a stand, says Joan Smith
From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?

Panto dames: before and after

From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?
Thirties murder mystery novel is surprise runaway Christmas hit

Thirties murder mystery novel is surprise runaway Christmas hit

Booksellers say readers are turning away from dark modern thrillers and back to the golden age of crime writing
Anne-Marie Huby: 'Charities deserve the best,' says founder of JustGiving

Anne-Marie Huby: 'Charities deserve the best'

Ten million of us have used the JustGiving website to donate to good causes. Its co-founder says that being dynamic is as important as being kind
The botanist who hunts for giant trees at Kew Gardens

The man who hunts giants

A Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there
The 12 ways of Christmas: Spare a thought for those who will be working to keep others safe during the festive season

The 12 ways of Christmas

We speak to a dozen people who will be working to keep others safe, happy and healthy over the holidays
Birdwatching men have a lot in common with their feathered friends, new study shows

The male exhibits strange behaviour

A new study shows that birdwatching men have a lot in common with their feathered friends...
Diaries of Evelyn Waugh, Virginia Woolf and Noël Coward reveal how they coped with the December blues

Famous diaries: Christmas week in history

Noël Coward parties into the night, Alan Clark bemoans the cost of servants, Evelyn Waugh ponders his drinking…
From noble to narky, the fall of the open letter

From noble to narky, the fall of the open letter

The great tradition of St Paul and Zola reached its nadir with a hungry worker's rant to Russell Brand, says DJ Taylor
A Christmas ghost story by Alison Moore: A prodigal daughter has a breakthrough

A Christmas ghost story by Alison Moore

The story was published earlier this month in 'Poor Souls' Light: Seven Curious Tales'