A Conservative government will withdraw from the European Convention on Human Rights after the 2015 election, Martin Howe QC made clear yesterday evening, unless European countries agree their “British Bill of Rights” fulfils the UK’s international obligations.

The QC most closely associated with the Tory promise to repeal the Human Rights Act spelled the position out during a panel discussion at Gray’s Inn organised by barristers at Brick Court Chambers, in front of a distinguished legal audience including the Supreme Court Justice Lord Clarke and current and former Court of Appeal judges Sir John Laws, Sir Patrick Elias and Sir Henry Brooke. Also present were many eminent barristers and solicitors, including leading government lawyers who must remain nameless.

Many thanks to Brick Court Chambers for allowing me to publish their recording of the event.

Howe quibbled with the premise of a question put by Paul Bowen QC, who suggested the UK was likely to remain subject to the human rights Convention.

That is not a fact,

Howe replied.

The policy is that either the Council of Europe accepts the proposals and agrees that they are in conformity with our obligations as members of the Council of Europe, or the United Kingdom will give notice that it will withdraw from the Convention

Asked later in what form he expected such an agreement to be delivered, Howe said

What would happen is we present, effectively, the Council of Ministers with a situation in which it was up to them to choose. If they’re not willing to agree that our arrangements are appropriate, then we would withdraw from the Convention.

His remarks struck a different tone from last week’s Conservative announcement, emphasising more strongly the real possibility of withdrawal.

The problem with the European Court was far more than just “mission creep”, he said.

we have a court at Strasbourg that has … interpretation is the wrong word … has spent 60 years inventing entirely new doctrines, not based on the wording of the Convention – in many respects contrary to its express wording … This is an intolerable situation, I believe, and it has to be resolved in a coherent way.

Both the former Attorney General Dominic Grieve and the government’s independent reviewer of terrorism legislation David Anderson QC disagreed with the policy, as did Bella Sankey, who spoke for the campaign group Liberty.

This is the first time we have said we will withdraw from the convention if the Council of Europe didn’t accept our terms of membership

said Grieve

and the terms of membership are that the judgments in future would only be advisory on the United Kingdom whilst they would remain binding in international law on everybody else – which I think one moment’s scrutiny must incline one to the view is impossible, because it would destroy the convention system in its entirety.

While Grieve himself was critical of the European Court, he stressed

All this in my view is a mistaken approach.

And the former Attorney General gave an insight into the legal advice he must have given to government. It’s ministers’ duty, he said, to observe international treaty obligations as far as they’re able

and that means we should not connive at trying to prevent the implementation of a treaty obligation, although it can mean, if it’s impossible to implement a treaty obligation – because Parliament won’t do it –that’s a different matter. If we don’t like a treaty, we should pull out of it, or we should try to renegotiate it. We should do a number of things; but we should not breach our international legal obligations, because there lies anarchy and chaos in the international order. It’s very simple and straightforward.

David Anderson QC was sharply critical of the Tory policy paper (which, the chairman Shaun Ley suggested, he’d brought for Martin Howe to autograph), in particular what it said about the recent Strasbourg “whole life orders” ruling – which he complained was “not true”:

If this document really was passed by “QC level lawyers” as I read in a press release, then they should be ashamed of themselves

he said, to applause. In contrast, Martin Howe’s claim that the policy document accurately characterised the Vinter ruling was met with groans of disbelief and disapproval from the audience of lawyers.

For Liberty, Bella Sankey was pessimistic about the UK’s future, under Tory policy:

It’s not clear that we would remain part of the Convention … if you take the paper at its word and then you, obviously, look at the response that we’ve already had from the Council of Europe, it would immediately bring about our exit … which would probably bring about our withdrawal from the Council of Europe, and perhaps even the EU while we’re at it.

The paper was “legal nonsense”, she said. And it would be counterproductive:

If we diminish rights that are protected in domestic law, it will only lead to more supervision from Strasbourg – the very thing that the Conservatives say they don’t want to happen … Being the first country to “deincorporate” the Convention is going to necessarily lead the court to take a stronger look at the cases that will be brought there. It will become once again a court of first instance; and the very sovereignty that the Conservatives say they want to return to the courts and to Parliament will be hugely lost.

Dominic Grieve pointed out the risk that EU law might fill any gap created by withdrawal from the ECHR:

I spent quite a lot of my time as Attorney General worrying about the expansion of the European Court of Justice’s jurisdiction, and this is a big issue – I dare say in terms of national sovereignty I think rather a bigger issue than anything which comes out of Strasbourg.

The ECJ had become more involved in justice and home affairs issue, he said, and

if in fact we have a situation where we are not observing Convention laws I think the risk to us is, it’s a green light to the ECJ in Luxembourg (if we’re still members of the EU) to start to expand their areas of competence into this sphere, which I don’t think is desirable. In fact I think it’s extremely undesirable.

Of course, he said

some people may welcome it. If people wish to have a mighty clash with the EU resulting in our departure, then this may be a mechanism which is precisely the casus belli that they wish to bring forward.

The retired Lord Chief Justice Lord Judge was careful to avoid expressing political views, and to distance himself from last week’s announcement. The timing of his recent article in Counsel magazine had, he said

nothing whatever to do with me.

Lord Judge was, though, critical of the Human Rights Act, in particular the way in which it requires British judges to take into account Strasbourg rulings:

The issue of what is binding on us, and how anything binding is to be implemented has been fudged, fudged from the very start of the Human Rights Act …

he said; and

… this to me is a very strange constitutional arrangement.

He contrasted the human rights position with that under EU law:

At least in the in the context of the European Court of Justice, there is no fudge. Our law’s entirely clear: our courts are bound by the European Communities Act 1972, and the European Court of Justice can tell us what to do.

Later, in response to a question from Lord Lester QC he asked

Why don’t we have an Act of Parliament that says, as with the European Court of Justice, the decisions of the European Court of Human Rights in Strasbourg will be binding? If we have that, then there’s your answer; but we don’t. We have a muddled piece of legislation.

Bella Sankey disagreed, stressing the deliberate principle embodied in the Human Rights Act specifically protecting Parliament from imposition by the European Court of Human Rights.

The final strand of the discussion was a disagreement between Lord Judge and most of the rest of the panel about how far the common law could, if the UK withdrew from the Convention, provide an equivalent level of protection for human rights. For public lawyers this was the most meaty legal discussion of the evening.

Perhaps the common law could fill the gap, or could fill some of it

said David Anderson,

but there would certainly be a difference.

The common law is a flexible beast, he said

and we’ve seen examples of this in very recent years … I sometimes wonder if there’s a sort of judicial “Plan B” developing, in case we do withdraw from the Convention.

In those words I think David Anderson encapsulated the thoughts of many public lawyers over the last year or so, especially since the judgment he mentioned in particular – Lord Reed’s, in the Supreme Court in Osborne v Parole Board.

He thought there were difficulties with that approach, though: falling back on common law alone would make it more difficult to project British legal values in an international language:

The European Convention is a vehicle for our values – you can call them British values if you want to … it’s in a way the last imperial vehicle … I don’t think citing dicta from 1748 cases is going to be such a persuasive way of achieving that.

Bella Sankey said that in the 1990s

it was becoming increasingly difficult for the common law to withstand the ever encroaching expanse of government action … that’s why the enactment of the Human Rights Act was so timely … in the land of Magna Carta and habeas corpus it took the Convention, in 2004, to put an end to the indefinite detention of foreign nationals under counter-terrorism legislation that was passed after 9/11.

Dominic Grieve agreed:

My constituents write to me about the common law constantly … extolling its virtues in a completely abstract fashion. But of course, as we know, the reason why we had Magna Carta or for that matter why we had habeas corpus and the Bill of Rights was that the common law was not sufficient … adding and using statute to remedy deficiencies in the common law is very sensible – and the Human Rights Act is such a statute.

Lord Judge was much more sanguine about the capacity of the common law to fill the gap after any withdrawal.

I see absolutely no reason why the common law cannot provide all the protections that we need … if you look at the common law books for 1951-2, that’s the Convention.

But he fought back against the accusation that his view was outmoded:

The common law is currently very much alive and very much on the go

he said. And

I don’t see how you can work on the basis that those of us who adhere to the view that I’ve expressed in relation to the common law  are somehow stuck like dinosaurs in 1950. The common law will develop if – and I’m not advocating this, and please nobody misquote me – but if for any reason we pulled out of the Convention, judges in England and – sorry, the United Kingdom – would be looking at Europe to see what decisions they were reaching, and this would influence their judgments, just like the decisions of some other countries do. Judges here don’t remain isolated in their own little embryonic shells. They look around the world for guidance and assistance.

In response to Lord Lester’s question, he insisted

The world has come on, the common law is developing and has developed and … the idea that … if we left the Convention we would revert to 1950s standards is, with great respect, absurd. We would have a huge body of law available for our judges to interpret, and move forward.

The question left open was whether Lord Judge’s approach would mean more and bolder judicial activism than we currently have from Strasbourg.

This was a serious evening of legal and political discussion by and in front of lawyers of the highest rank.

                                               Thanks again to Brick Court Chambers for permission to use their recording of the event

Here’s the human rights passage from David Cameron’s speech to the Conservative conference today. He gave no detail, but seemed to signal that the Conservatives will choose what earlier this week I called Option 2 – the relatively moderate choice of amending the Human Rights Act and relabelling it a “British Bill of Rights” without attempting to dilute Britain’s international law obligations. That’s the stance the Tories have had for some years now, though what their Bill of Rights would contain has never been explained. Apparently, more detail will be announced tomorrow.

And here’s what he might have said.

Before I turn to the European Union, let me talk about something else that’s needed sorting out – the European Court of Human Rights.

 When that charter was written, in the aftermath of the Second World War, it set out the basic rights we should respect. 

But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong.

Rulings to stop us deporting suspected terrorists.
 And they want to give prisoners the vote.

 I’m sorry, I just don’t agree. Our Parliament – the British Parliament – decided they shouldn’t have that right.

Let me put this very clearly. This is the country that wrote Magna Carta, the country that time and again has stood up for human rights, whether liberating Europe from fascism or leading the charge today against sexual violence in war. We do not require instruction on this from judges in Strasbourg.

Now, some people said we had to accept just that, that the European court was unreformable, that we had to give in to all its most bonkers judgments or somehow be an outcast among civilised nations.

But at the Brighton conference a couple of years ago we did get agreement for change. The European court will now hear fewer cases, focus on real human rights breaches, and give new respect to the choices of democratic Parliaments. We’ve one man to thank for that – our great negotiator, Ken Clarke. We don’t always agree on Europe, Ken, but you secured a good deal for Britain.

They said if Parliament stuck to its guns on prisoners’ votes, it’d cost the taxpayer £100 million. Remember that? But only a few weeks ago the European court decided that, while it continues to disagree with me – and that’s fine, so long as it respects our democracy – prisoners who make claims won’t get compensation, and their human rights lawyers won’t be paid costs. Common sense at last.

And our own judges are now clear they can assert our own common law rather than slavishly follow everything Strasbourg says. For the most evil criminals life can mean life, they’ve ruled, even if that makes foreign judges queazy. We can agree to disagree. So we’re winning the fight for common sense, here and in Europe.

The man who’s made the weather on this, who spoke for Britain in our own courts and in Strasbourg, and whose tireless advocacy has overcome the naysayers, is our outstanding Conservative Attorney General, Dominic Grieve.

Last but not least, we all saw with our own eyes that all too familiar bearded face peering through the porthole as he fastened his seatbelt on a flight to Jordan. Let’s hear it for the woman who made it happen: our crime-busting Home Secretary, Theresa May.

So to those who say this party can’t deliver change in Europe, I say: look at what we’ve already done on human rights. We stood up for Britain and we are winning the argument. We can and we will do the same in the European Union.

Unfortunately he’s spent so much time flirting with departure from the ECHR, tacking towards UKIP and radicalising his own party (not to mention sacking his widely respected legal chief) that he couldn’t say anything like this. He’s made his government’s quite successful policy look like surrender; and dare not explain what seems to be his party’s relatively moderate policy at its own conference.

Liberty’s director is a great communicator, both in front of an audience and in the media; and partly because of that, this book is a little bit disappointing.

The jacket calls On Liberty a “frank and personal book” and there are flashes of the personal about it. Chakrabarti talks to some extent about her son and her parents, this perhaps being the most striking passage:

That evening my father’s words captured my imagination and turned my stomach and it makes the hair on the back of my neck stand up even today as I write. I duly reconsidered and never looked back. If I went on in adult life to be the bugbear of so many authoritarian men, they only have one of their own number – my dear old dad – to blame.

She also mentions a number of her friends. But the personal angle is pretty restrained, actually: on that, I agree with Gaby Hinsliff. For the most part On Liberty is the sort of polemic you’d expect from the country’s leading civil liberties campaigner. It reads as though it’s adapted from speeches of the kind Chakrabarti must often give, on Liberty’s usual themes: torture, ASBOs, detention without charge, DNA, secret courts and so on – and this is I think its main weakness in both style and substance.

First, style. Jokes and asides that work well with an audience –

Let’s face it – if you really think there are only fifty shades of grey, you probably need a bigger box of crayons.

can be a bit clunking on the page. Sam Wollaston says the book’s “more lawyerly than writerly”; I’d say the feeling that Chakrabarti’s argument builds within rather than across chapters, together with her use of fairly familiar turns of phrase on the whole, makes the book more “speakerly” than anything.

In terms of substance, I hoped Chakrabarti would range widely on freedom generally – but she pretty much sticks to the day job. There’s not much discussion of freedom of expression, for example, a key aspect of liberty but not one Liberty is known for being strong on. In one short passage she says

Speech is often described as an absolute right in other parts of the world but it can never be absolute in practice

which is fair enough. Later in the content of freedom of religion she mentions the 2004 controversy over the closure of the play Behzti by Gurpreet Kaur Bhatti (which I don’t remember Liberty taking a strong public stance about at the time). But there’s not a lot else.

One thing the book does reveal about Chakrabarti’s wider political thinking – I would have liked much more of this – is that the evils of discrimination are just as important to her as liberty in the usual sense.

Lawyers can number, translate and contest the application of our rights to particular circumstances. But these values can be summed up by three little words: dignity, equality and fairness. These are the ideas from which our various human rights flow and for reasons this book explains, the greatest of these is equality.

I’m not sure the book does explain that, but Chakrabarti’s feelings about discrimination do come to the fore repeatedly.

Towards the end she makes clear she imagines a variety of readers, and that you may be “supportive, sceptical or downright seething”. I doubt this book will make many people seethe, but I’m not sure it will persuade many sceptics either. Chakrabarti identifies what she calls “tock-tick logic” (rationalising your instinctive preferences after the event) – and to be fair she makes no claim to be freer of it than anyone else – but she seems to do something similar with prisoners’ votes:

Wicked prisoners shouldn’t have the vote. Really? Not any one of them, no matter how short the sentence or questionable the crime? What if you chose to go to prison rather than take the identity card forced on you by a future authoritarian government?

… is this the issue over which you would throw the baby out with the bath water and give up your own rights with those of the prisoners?

I don’t doubt Chakrabarti would care about this anyway. But would she marshal so many arguments in favour of the policy merits of prison votes, were this not a totem issue on which liberals’ instinct is to defend the European Court of Human Rights? Her answer to the “ticking bomb” scenario is a good one, but not many thoughtful Liberty-sceptics will have disagreed with her on it anyway.

For the most part her critique is rigorously moderate, but on rare occasions she’s tempted into overstatement to make a point. Just as Chakrabarti’s reaction to Theresa May’s Conservative conference speech called the Home Secretary’s admittedly repressive proposals on extremism “state powers worthy of a caliphate” at one point in On Liberty she compares our own religious history to the Taliban’s Afghanistan:

The first option is to pick a religion, any religion. Make it your favourite, to the extent of embedding it into the fabric of your society, and legal and political systems. Everything else is secondary, even subordinate – in fact, ruthlessly so. The extreme modern example might be Afghanistan under the Taliban, but another illustration might be Britain, and not so very long ago.

That seems to me a reasonable comparison if by “not so very long” ago she means a few hundred years. She implies Britain’s not an extreme example, true; but when did we last subordinate everything ruthlessly to one religion?

For a cover price of £17.99 in hardback (of course you may be able to buy it at a discount) you only get about 150 pages of actual book: reprinting the Human Rights Act takes up thirty pages at the end. So my disappointment’s a bit about quantity, I must admit.

If you’re not just a fan of Shami Chakrabarti but agree with her public campaigns, want to read about exactly those issues and along the way find out just a tiny bit more about the woman herself – then you’ll love this book. She does as always make a passionate and pretty strong case for her beliefs. But I wish On Liberty were wider-ranging, or more surprising.

On Liberty, by Shami Chakrabarti, is published in hardback by Allen Lane on 2^nd October 2014, priced: £17.99

Although Tory hostility to human rights law is obvious, there’s been vagueness till now about what actual policy a Conservative government would pursue. For a long time the plan was to draft a “British Bill of Rights” the content of which was unclear – and the idea hasn’t gone away. There’s been talk of “making the Supreme Court supreme”; the Home Secretary Theresa May has promised to repeal the Human Rights Act and the Justice Secretary Chris Grayling has apparently been working on some sort of blueprint, though it’s not seen day yet. The former Attorney General Dominic Grieve fears a plan to make adverse rulings by the European Court of Human Rights somehow subject to approval by Parliament.

But tomorrow morning May and Grayling will speak at the Conservative conference in Birmingham, and the time for fuzziness will be over. Surely by Tuesday lunch, the plan and the policy must be clear. What might it be?

The objective, and the current approach

First let’s consider their objective. It must be to prevent future rows like those about prisoners’ votes and the deportation of Abu Qatada, and to make the European Convention on Human Rights a more congenial system for British governments in future. For partisan reasons, they’d also like to make it clear to the public that it’s the Conservatives “what done” that.

There’s an existing strategy of course: one of diplomatic and legal attrition (or “dialogue”) in which ministers try to influence the European Court of Human Rights to go easier, and British judges to be less deferential to the Strasbourg court. It’s fair to associate this approach with Dominic Grieve, but it may also owe something to William Hague; the importance in this policy area of the Foreign Office, which is responsible for international treaty obligations and for global human rights policy, is often overlooked, and his recent removal may be as significant as Grieve’s.

The strategy’s working. The most recent Strasbourg judgment on prison votes (in which the European court decided not to award compensation or costs to prisoners denied the vote) effectively signals that the Court has given in, for fear that upping the ante on the UK would simply flood it with ever more applications from British prisoners. That’s a fear that’s been more useful from the UK viewpoint than is often appreciated. In my view, the next government should continue this strategy, which is by far the best in the UK’s interests. It’s likely to succeed without disrupting the Union, emboldening British judges or damaging our foreign policy promotion of human rights standards.

But my approach would mean no party would get electoral credit when, in five or ten years, people realise human rights questions seem less controversial, less often than they once did. Conservatives have an incentive to put a more garish policy up in lights to try to get the better of both UKIP and Labour.

The options

There are several possible options: (1) repealing the Human Rights Act; (2) amending the Act (or repackaging it with changes as a British Bill of Rights) to change the relationship in domestic UK law between the Strasbourg court, our own courts and Parliament; (3) leaving (or in interventional law jargon “denouncing”) the European Convention on Human Rights temporarily in an attempt to alter the same relationships in international law; and (4) leaving the Convention altogether. The final option would raise an easy cheer in UKIP strongholds but would surely be the last resort, even for today’s Conservatives.

Here’s why I think they’re likely to announce what I’ve called Option 2. The really aggressive (but almost certainly doomed) policy would be to combine Option 2 with Option 3 added not as a threat, but as a promise. In any case I imagine they’ll threaten Option 3 or 4, the UKIP option, “if need be”.

Repeal

Simply repealing or “scrapping” the Human Rights Act would take the UK back to where it was in 1999. It may sound like slaying the beast to many Conservatives who don’t know what the Act does or says. David Allen Green (@JackofKent) is quite right:

A general rule: the stronger the hostility to the Human Rights Act, the less a person will know in detail about the Human Rights Act.

— Jack of Kent (@JackofKent) September 26, 2014

Yes, repeal would mean government action could not be stopped by British courts on human rights laws grounds, at least not under the European Convention. But it would fail to achieve the main objective, because neither the Abu Qatada case nor the prisoners votes controversy were caused by the Human Rights Act. Domestic courts left to themselves would have allowed the Jordanian’s deportation much earlier, and the Human Rights Act denies prisoners the vote, a point which is often (somewhat mystifyingly) overlooked. Repealing the Human Rights Act would not alter this country’s relationship with the European court.

The problems repeal would cause are also worth considering. Repeal would have a differential effect in England from in the devolved nations, whose legislatures are anyway bound to respect European human rights standards. Unless the government wanted to free then from those shackles, English judges in Westminster would still decide human rights questions against devolved administrations. Only those who’ve already forgotten their concern about the Union could “chillax” about the Scottish view of this. Would English local councils, for example, be given more freedom in this key respect than the Scottish Parliament? That would be the effect of a simple repeal.

Second, repealing the Act would have an unpredictable effect on judges. Rightly or wrongly there is a “politics of the judiciary”, and most lawyers and judges in 2014 subscribe to a vaguely liberal view in which human rights must be promoted and enforced somehow. They’ve even been encouraged by politicians to develop their own human rights thinking in recent years, and to dissent from Strasbourg. The trouble is, given their own head they could become more demanding than Strasbourg, not less. We could easily see judges incorporating tough human rights requirements into our common law, loosed from European or statutory moorings. That sort of future could be more constraining for British politicians. They must be careful what they wish for.

So if I were Grayling or May, “scrapping the Human Rights Act” would not be my policy, unless what I really meant was cosmetic replacement of it with something fairly similar, along the lines of the amendments I’ll turn to now.

Amendment

A more serious policy would be amendment (which could be could presented as “scrapping” the Act and enacting something similar under the label of a “British Bill of Rights”). Amendment would have two objectives. First, to “make the Supreme Court supreme”. Second, to prevent any change to legislation for human rights reasons being made without Parliament’s approval.

Making the Supreme Court supreme

They could “make the Supreme Court supreme” by amending section 2 of the Act, which says domestic courts must take account of Strasbourg rulings. Section 2 doesn’t require our courts to follow Strasbourg: everyone agrees with that. The change they’d want to make would be quite a limited one, to stop the Supreme Court feeling in some cases that it must defer to “clear and constant line of decisions” from Strasbourg. An example of where this has happened is (yet again) prisoners’ votes, on which our highest judges initially agreed with the British government but because in the meantime there’d been a “clear and constant line of decisions”, declined to say Strasbourg was wrong in the Chester case last year.

The answer would be to make clear that a UK court should only determine a human rights issue in accordance with a Strasbourg ruling if it agrees with that ruling. The intention would be to stop judges from ever applying Strasbourg rulings, no matter how often or how powerfully insisted on by the European court, in preference to their own legal views.

The Conservatives could also limit the section 3 power (duty, in fact) that judges have to strain the interpretation of legislation to meet human rights concerns. The intention would be to ensure they could not depart from Parliament’s original intention and thereby amend laws “by the back door”. That’d have a political downside, though, as it would mean the courts would more often have to declare legislation incompatible with human rights (which is often the alternative to a strained interpretation) – and so human rights would be in the news a bit more often. I doubt they’ll touch this, unless they promise to do away with declarations of incompatibility as well.

Parliamentary override

The Parliamentary override issue is, in one way, quite simple. As things stand already, no amendment can be made to legislation without Parliament’s agreement one way or another. But one way of seeming to boost Parliament’s role would be to abolish remedial orders under section 10 of the Act, so that any change to primary legislation not within the scope of an existing delegated power would have to be made by introducing a bill. Not actually a very radical change, that.

There would, though, be a political case for inserting in legislation a declaratory statement of Parliament’s centrality – and a legal case, if the Tories want to combine options 2 and 3. They might want also to remove the possibility of ministers using any delegated powers at all to give effect to human rights judgments. So a section could be inserted into the Human Rights Act saying no legislative change may be made to remove incompatibility with any of the Convention rights, except by Act of Parliament (or by equivalent Acts of the devolved legislatures).

These amendments would do something to make our domestic human rights scheme more Strasbourg-proof than it is already, without letting our own judges off the leash. But their effect would be less radical than it might seem. They would do nothing to stop a repeat of the Abu Qatada and prison votes problems. To win politically on those, the Tories will need to succeed by the current attrition strategy, and perhaps pretend it’s these amendments that do the trick.

If they feel even that’s not enough, they’ll need to try changing our relationship with the ECHR and the Strasbourg court on the international law level, which we’ll look at next. This would really be “courageous” in the Whitehall sense.

“Denounce and reserve”

Temporary denunciation of the Convention has crossed ministerial minds in the past, and it might occur to them to leave the ECHR and try to rejoin making a reservation under article 57 that mirrors the domestic changes I’ve mentioned above and makes brief reference to them (which is where the legislative declaration would help). A reservation is a way for a state to qualify the international law obligations it accepts under the ECHR – adding riders and provisos, in other words. This can only be done on signature or ratification of the Convention, which is why the UK would need to leave first, having already ratified the Convention back in 1951. Many states have entered reservations, mainly to give themselves extra latitude on limited and specific issues such as the detention of soldiers under military discipline laws.

The reservation would be against article 46 and perhaps article 13 of the Convention, saying the UK will give effect to Strasbourg judgments subject to the principles that any ruling against the UK will have binding effect only if the UK Supreme Court agrees (this is the really cheeky one, and perhaps dispensable), and that Parliament’s approval is needed for any change to legislation (cheeky, but a little less so; and essential). The intention would be unilaterally to impose those principles on the other signatory states. If it succeeded, the UK would end up being a little less bound by the Convention than they are.

That wouldn’t be the end of the matter, though. Far from it. As Richard A, Edwards has explained, the ECtHR has power to rule that a reservation is “of a general character” or contrary to the object and purpose of the Convention, and so invalid. It has done this in previous cases and the UK wheeze would blow a massive hole in the Convention enforcement mechanism. So the court would be bound to review it, and would probably strike it down. At that point, the UK would have to choose definitively between simply returning to legal and diplomatic attrition, or leaving the Convention for good. Of course it might take a few years to get to that, which may be a long enough delay to satisfy today’s politicians.

What we’ll hear on Tuesday

Unless they’re prepared to leave the Convention altogether, then, the Tories’ options are more limited than they’d like. I doubt they’ll repeal the Human Rights Act: in a sense that’d be the least daring option, but it would carry unique risks of its own, particularly from Scotland and the judges.

They can “make the Supreme court supreme” and give MPs more visible control over legislative changes following human rights judgments. Neither would solve the Abu Qatada or prison votes problems but I expect them to announce both, and to threaten leaving the Convention as a backstop either temporarily (Option 3) or for good (Option 4).

What’ll be really interesting is if they’re determined to go beyond tinkering with the Human Rights Act, and promise to impose their Option 2 domestic changes on Strasbourg by my Option 3 – the “denounce and reserve” approach. That would in a sense be magnifique from a Eurosceptic viewpoint, but would almost certainly be a Light Brigade moment.

Postscript

It’s worth remembering that none of this – even total denunciation – would at all affect the continuing UK effect of human rights as part of EU law. So long as we remain in the EU, fundamental rights as laid down in the EU Charter (which basically replicates the ECHR) must be enforced by our own judges in any EU law dispute, about discrimination at work, say, or free movement of an EU citizen or his or her spouse.

Of course if there’s a Conservative majority next year, that fairly big loose end might only last till 2019.

For once, there’s no legal controversy about American and potential British military action in Iraq. I don’t think anyone’s claiming it’d be unlawful for the RAF to carry out air strikes on “Islamic State” targets in Nineveh province, or near the borders of Iraqi Kurdistan. Not even the Stop the War Coalition raises international law as one of its ten objections to action there.

That’s because Iraq and its allies, including the US and, if it joins in, Britain, are exercising the right of self-defence against armed attacks by “the Islamic state”, in accordance with article 51 of the UN Charter. Neither the US nor the UK is being attacked of course (as far as we know, yet). But the inherent legal right recognised by article 51 is not just the right of individual self-defence by Iraq, but the right of collective self-defence. Allies can band together to defeat attacks on one of them, so the Iraqi government’s requests for help make American and British action in defence of its territory unquestionably lawful.

But what about attacks on “IS” in Syria? The Syrian government doesn’t consent to American strikes on targets in its territory (at least unless they’re coordinated with its own command, something the American’s won’t do). The Americans can’t claim they’re acting in collective defence of Syria. There’s no United Nations Security Council Resolution authorising action in Syria of course, and unlikely to be one given the support of Russia (this year’s egregious violator of international law in Ukraine) for the Syrian regime.

So the legal position as regards air strikes in Syria is less clear; and that’s enough to spook not just Ed Miliband but Her Majesty’s Government, who are likely to propose action in Iraq only. Professor Philippe Sands QC says there wouldn’t even be “wafer-thin” legal justification for action in Syria, and in the UK’s post-Blair condition his merely saying so probably makes it conventional wisdom in media and politics, regardless of whether it’s legally correct. But is it legally correct? I think not.

The US administration, in its letter to the UN Secretary General this week, said

Iraq … is facing a serious threat of continuing attacks from ISIL coming out of safe havens in Syria. These safe havens are used by ISIL for training, planning, financing, and carrying out attacks across Iraqi borders and against Iraq’s people. For these reasons, the Government of Iraq has asked that the United States lead international efforts to strike ISIL sites and military strongholds in Syria in order to end the continuing attacks on Iraq …

States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, as reflected in Article 51 if the UN Charter, when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq …

The argument is clearly that strikes on Syrian territory are lawful as part of the collective self-defence of Iraq, because Syria is unwilling or unable to end the “IS” threat.

The UN Secretary General doesn’t seem to object to the argument. Nor does the French foreign minister Laurent Fabius, who made France’s legal view clear in two separate statements on Monday, in an interview with BFM TV (the translation is mine)

Si la question posée est : «Est-il possible de poursuivre les groupes Daech en Syrie ?» – puisque vous savez qu’ils sont à cheval sur l’Irak et la Syrie -, d’un point de vue juridique, rien ne s’y oppose.

If you ask the question: “Is it possible to pursue Daesh [“IS”] into Syria?” – because as you know they straddle Iraq and Syria – there’s no objection from a legal point of view.

and at a press conference in New York:

Il n’y a pas à notre sens d’empêchement juridique à ce que les attaques de Daech fassent l’objet de réactions aussi bien en Irak qu’en Syrie. Cela nous semble faire partie, dans l’analyse que nous faisons, de la possible légitime défense, au titre de l’article 51 … nous verrons si la question est soulevée mais nos analystes juridiques nous disent qu’il n’y a pas d’empêchement.

From our perspective there’s no legal obstacle preventing us responding in Iraq or equally in Syria to Daesh’s attacks. That seems to us, in our analysis, to form part of a potentially legitimate defence in accordance with article 51 … we’ll see if the question is raised, but our legal analysts tell us there’s no obstacle.

Nor do Jennifer Daskal, Ashley Deeks and Ryan Goodman, whose piece on this appeared at both Just Security and Lawfare. They say

The weakest link in the chain is the unwilling or unable test. As one of us has written, “The ‘unwilling or unable’ test is now a fairly well settled part of the US government’s legal position. Nevertheless, it remains controversial under international law.” And another one of us conducted an exhaustive study which found that states quite frequently invoke the test, but “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation.” …

Assuming, arguendo, acceptance of the unable or unwilling test, the U.S. legal argument is sound, so long as the force used is necessary to protect against the direct threat that ISIS poses to Iraq, and that the amount and nature of force is proportionate to suppressing that threat.

It’s entirely fair to say the ‘unwilling or unable’ test is controversial to some extent. Kevin Jon Heller has argued forcefully, more than once, that it is not part of customary international law and that there’s no extensive state practice to support it. And Milena Sterio at IntLawGrrls says

it appears that the United States’ rationale for using force against ISIS in Iraq and Syria is shaky at best under international law, because of lack of consensus in the scholarly community about the “unable or unwilling” test and because of the test’s complex application to the Syrian context …

Yet the former legal adviser to the Foreign Office Daniel Bethlehem QC (while not claiming it represented an accurate or authoritative statement of current international law) did put the “unable” limb of the “unable or unwilling” test forward as Principle 12 of his 16 suggested “Principles relevant to the scope of a state’s right of self-defense against an imminent or actual armed attack by nonstate actors” in a paper last year. He put it like this:

The requirement for consent [under his principle 10, for a state to take action in self-defense against a nonstate actor in the territory of another state] does not operate in circumstances in which there is a reasonable and objective basis for concluding that the third state is unable to effectively restrain the armed activities of the nonstate actor such as to leave the state that has a necessity to act in self-defense with no other reasonably available effective means to address an imminent or actual armed attack.

The suggested principle was criticised by Dire Tladi. I can’t find an open access version of that paper, but Tladi concluded by saying

The proposition contained in principle 12 is based on an erroneous assessment of customary international law and state practice and on an acontextual interpretation of Article 51 …

In assessing what is permissible and what is not permissible under the international law principle of self-defense, other principles such as territorial integrity, the prohibition on the use of force, and sovereignty must be respected. Such an assessment requires that, before force is used against nonstate actors on the territory of another state, either the consent of the territorial state is obtained or a reasonable basis exists for attributing responsibility for the initial attack to the territorial state. To hold otherwise would imply that self-defense takes priority over these foundational principles of international law, a proposition that has no basis in international law.

But self-defence, when properly invoked, must take priority over the other international law principles he mentions, as he would surely agree if the discussion were about one state defending itself against missiles fired by its neighbour’s army. This isn’t a dispute about the relative priority of self-defence in international law, but about the width of the concept. Just asserting the relative importance of sovereignty doesn’t answer that.

Bethlehem himself responded to the criticism as follows:

There are both legal and practical problems with a conclusion that camps on the sovereignty of the reluctant host without regard to the threat emanating from nonstate actors on its territory. The legal problem is that such a conclusion disregards the responsibility of the territorial state, which arises as much from a failure to act as from conduct that is collusive. The practical problem is that no putative victim state faced with an imminent attack by a nonstate actor located in the territory of another state that has failed to take effective action is likely to sit on its hands and be content to absorb the attack. It is likely to act. The conclusion of the comment in question is therefore not credible and, as such, also calls into question the credibility of the law.

This last point is surely decisive. It just isn’t credible to assert that international law regards action in Syria as aggression in these circumstances: if it did, it would be an obvious ass. If Heller, Sterio and Tladi are right it must follow that, once American force has chased “IS” over the border, Iraq must simply put up with a continuing threat – and even put up with Hamas-style rocket attacks into its own territory, assuming “IS” is capable of them. Cuckoo nonstate organisations which found suitably weak host states would be free to attack others with a large measure of impunity. That interpretation of the self-defence principle would enable force rather than limiting it (it would simply enable it by aggressive nonstate actors rather than by states defending themselves), and would undermine the international rule of law rather than promoting it.

So international law must permit a state under attack to respond to and defeat its nonstate enemy, even on the territory of another state, if that state is unable or unwilling to help it. The only real argument is whether Syria is in fact unwilling or unable to tackle “IS”. If it is, then Iraq and its allies can lawfully attack and if need be defeat and destroy it in Syria.

It’s hard to see that strictly legal considerations limit UK action to Iraq, then. The Americans think air strikes in Syria are lawful; so does France; so it seems does Ban Ki-Moon; and so do many if not most international lawyers. It’d just be what Philippe Sands has told the Independent, really. Of course we may find out more about the government’s legal view this afternoon: they may agree with me rather than him.

A final point, not so much on the strict legalities, but on the wider political morality of all this. If anyone seriously believes what the Americans are doing in Syria is unlawful, then they should oppose not only that, but any British or European participation, even in Iraq. To aid and abet the use of force you think is unlawful would be wrong, and Britain, France and the Netherlands will certainly aid the Americans in Syria by shouldering some of the burden in Iraq.

Equally, if we don’t really think the Americans are breaking international law, we should support and help them however, wherever we can. To scrupulously stand aside from any enterprise that could (quelle horreur!) be questioned by a lawyer, pleased perhaps by one’s mature ethical rigour, yet secretly wish success on those who’ll do right in the face of criticism – that would be a pathetic mixture of cowardice and hypocrisy.

I support the government’s proposed action in Iraq, and I’d support it in Syria too.

Private Chelsea Manning, currently serving 35 years in a US military prison for offences relating to the disclosure of classified documents to Wikileaks, is now taking legal action against the US Department of Defense and others to compel them, by means of an injunction, to allow her treatment for gender dysphoria, including hormone treatment.

The Guardian has published the complaint, setting out the facts and the request for injunctive relief.

Here (via Wise Up Action) is the Memorandum in support of the motion, setting out Manning’s legal argument that refusal of hormone and other treatment amounts to “cruel and unusual punishment” in breach of the 8th Amendment to the US Constitution, and that the conditions for grant of an injunction are satisfied.

The main constitutional business that ought to be on MPs’ minds at the moment is how to deliver the party leaders’ “Vow” to grant “extensive new powers” to the Scottish Parliament. The extent of powers to be transferred, and particularly the extent of power over tax that will be devolved, is far more urgent and important to the future of the UK than “English votes for English laws” (the principle that MPs for English constituencies should decide on proposals only affecting England). Both can be got on with at the same time, or course. But the fact that London politicians’ attention has so soon turned to England is a gift to Scottish nationalists, and has slowed the Union’s healing. The sooner they return to their Vow, the better.

English votes for English laws

That doesn’t mean I’m against “English votes”. I’m for it, as the logical consequence of substantial devolution. But one of the keys to seeing straight on “English votes” is understanding the issue’s true proportion. In modern times, every government with a working UK majority has had an English majority as well. The only exceptions were the short-lived and knife-edge governments following the 1964 and February 1974 elections. Yes, 2015 is likely to be very close, and a similar situation might – just might – arise. But even that’s not all that probable: of Labour’s hundred-odd target seats, all but twelve are in England.

At the moment, all kinds of wild fears are being spread about the principle of “English votes”. I’ve read the suggestion that it’d mean we needed an English First Minister, an English government or an English Parliament. All are nonsense. In truth, a sensible and unexciting set of tweaks to Commons procedure has already been recommended by the McKay Commission, which was tasked with looking at this. The parties should simply get on with implementing them.

The McKay Commission

The McKay proposals are a bit complicated, and pretty dull – a sign perhaps of a sound, rather than a silly, constitutional reform. At their simplest, they amount to saying new laws with specific effects in England should be considered before second reading by an English Grand Committee (which just means all English MPs sitting together in the Commons chamber). If rejected by the committee, they should not normally be insisted upon by a majority including non-English members. Later in the bill’s passage, committee stage should also be dealt with by English-only backbenchers, the public bill committee’s makeup reflecting the party balance in England. The idea is, by means of these procedural changes, to give birth to a constitutional convention (in the modest sense of an understanding or practice) that non-English MPs should not normally vote on purely English matters.

McKay does make some other more convoluted suggestions, but these are the heart of his recommendations. They’re sound; could be implemented quickly; and would ensure that the view of English MPs could not in normal circumstances be overridden by the views of others on matters only affecting England. They offer a complete and constitutionally literate solution to the “West Lothian question”.

Some may object at this point that that weasel word normally leaves the door open for Scots MPs (or more accurately, an English minority with Scottish support) to impose their will in some circumstances. Yes, that’s true. McKay would not “ban” Scottish MPs from voting on English matters. But he’s quite right to stop short of that.

While under the Sewel convention the Commons does not normally legislate on devolved matters without the consent of the Scottish Parliament, nothing in our constitution actually prevents English MPs from doing so, since Parliament as a whole remains sovereign. So those who would want to go further than McKay and “ban” Scots MPs from voting on English matters are not actually asking for balance, but for England to be more constitutionally iron-clad than Scotland. That’s why I say McKay’s moderate proposals are constitutionally literate. They’d achieve balance for England: no less but no more.

A rare new type of hung Parliament

But, some ask, what if by some chance we do happen to get one party next year with a UK majority, but without an English one? What if “the opposition” has a majority in England? Surely we need now to set the ground rules within which each must work, in case that happens? The answer’s an emphatic No. It’d be far better for MPs to have to muddle through, and make it up as they went along.

If the government did not find itself with a majority in England, it would have to reach some kind of accommodation with other parties in order to implement its English programme – most obviously its health and education policies – or some agreed compromise programme. It would be a new species of hung Parliament. And just as it was helpful for Tory and LibDem politicians in 2010 not to work to a pre-ordained set of rules about how their agreement would have to work (they could have chosen a supply and confidence arrangement for instance) or even whether they reached one at all, so in this new type of hung Parliament fixed rules would be hindrance rather than a help.

We might at one extreme end up with a new kind of Anglo-British coalition, one or two ministers from an “opposition” party running English policy departments. More likely, the government would take a bipartisan or compromise approach to English policy, while perhaps preparing for a new election. Much would depend on the particular balance of forces in the Commons, and the relative policy stances of the parties. A Labour government without an English majority of its own might actually find it very easy to achieve comfortable English majorities for its English programme with the support of LibDem MPs.

By the way, this sort of hung Parliament would I think be wise to get rid of the rigid framework of the Fixed-term Parliaments Act, which would otherwise prevent an early election. I mention that simply because it’s another good example of how obstructive fixed constitutional rules can be. Political solutions to political crises are better.

So the way ahead is really quite straightforward. Most focus should be on fleshing out the Scottish “Vow”. At the same time, MPs should do the boring back room talk necessary to put McKay into practice. It’s far from the existential threat to Labour that even Labour politicians seem to assume, and is unlikely to be bettered from any party’s point of view.

A constitutional convention would be folly

What we emphatically do not need is huge, wide-ranging or fundamental constitutional change, or any process – such as a constitutional convention (in the pompous sense of a council, assembly or folkmoot) – which would flirt with such upheaval. Designs like this, in spite of their surface grandeur, are actually opportunistic or self-serving, with the usual think-tank suspects flogging their predictable patent remedies as panaceas, and party politicians seeking advantage through delay.

If there’s ever a “Gardner’s law”, it might be this: constitutional change in the UK should always be piecemeal and specific, never holistic. Those who repeatedly claim piecemeal change “has failed” are simply wrong.

Some people think there should be more power for English cities and counties now. I agree. If politicians want that, they should make specific proposals in their manifestos. Some want 16 and 17 year olds to be given the vote, now they’ve taken part in the Scottish referendum. Again I agree, and I’d like that specific proposal to be brought forward now. Neither needs to wait on a constitutional talkfest.

Others want more Lords reform. Again, fair enough. But it would be better done in small, agreed chunks, like taking the bishops out immediately, for example. The one serious piecemeal effort we’ve had at Lords reform worked: the hereditary peers have almost all gone. What did fail was Nick Clegg’s botched grand design. But that’s exactly the kind of rubbish that’d be revived by a constitutional seminar of the great and good. Proportional representation is an unwanted reform that campaigners would like to smuggle on to the agenda under cover of a grand constitutional jamboree. As is regional government.

Beware moves towards a written constitution

But the most ominous aspect of a constitutional convention would be its inevitable flirting with a “codified” or written constitution, which would be the daddy of all wrong-headed and holistic constitutional plans. A written constitution for the UK would be intended to limit politics by placing obstacles in its way. Whenever a radical new policy was advanced, opponents could object not on its merits, but on the basis of whether it was “constitutional” – as happens in the US, where health care reform hung on the vote of one judge.

At the moment, EU law and human rights law limit what British politicians can achieve. Is the public completely happy about that? Or do these constraints cause tensions in our democracy? We all know it’s the latter. I’m prepared to defend the influence of both EU and human rights law in the UK; but that’s because they set only some limits on UK politics, and both are ultimately removable by Parliament. A written constitution would be for ever. It would bring in a judicialisation of politics and a disempowerment of voters that would amount to something like Britain’s current human rights controversy expanded in excelsis. It would hobble politics, and drive MPs even more towards an indistinguishable middle ground. Finally, it would prevent constitutional changes we’re likely to need in future, but can’t now foresee.

Written constitutionalism in the UK poses as a movement for unspecified “change”; but in truth it aims at slowing down and stopping change. A written constitution is the most conservative proposal possible. But be in no doubt: many who call for a constitutional convention want precisely this. I had an exchange on Twitter during the Scottish referendum debate with someone who wanted new constitutional rules to stop another Scottish independence referendum being held so easily, for example. But the fact that that referendum happened (it’d be impossible in many countries with written constitutions) is proof of the strength and democratic radicalism of our arrangements, not their weakness.

Politicians should get on with the limited changes needed following the Scottish vote – then allow the Union to settle. They mustn’t be allowed to throw our constitution into chaos.