Gove has basically admitted the Tory attack on human rights is dead
For once, we learned something in a committee hearing. Firstly, that the consultation paper on the repeal of the Human Rights Act will be published soon. And secondly that it will be, to all intents and purposes, dead on arrival.
Michael Gove's appearance in front of the EU justice sub-committee saw him admit outright that the government has no intention of pursuing the nuclear options it had once boasted of. We won't be leaving the European Convention of Human Rights (ECHR), upon which the Human Rights Act is based. We will be keeping all the rights within it. But there will be a couple of modifications: firstly, on British troops serving abroad during a conflict, and secondly to tilt the balance of rights more towards a British legal tradition, for instance by emphasising free speech over privacy. What that means is anyone's guess. Gove himself seemed entirely unconvinced by what he was saying. But he accepted readily the chair's description of the changes as a gloss.
It’s quite a turn around. In October 2014, the Tories published a paper on the Human Rights Act which was aggressive, radical and almost entirely legally illiterate. If enacted, it would have meant a British exit from the ECHR – an almost unthinkable move given its importance in international human rights standards and our own role as its parent. Then they published a really quite moderate manifesto commitment, like an angry drunk waking up bashfully in the morning. And then they won an election and it was back on the booze again with a full-blooded attack on human rights and promises of action within 100 days. Now, once again, it is the mouse and not the lion. It is absurd, but it is a much better absurdity than the alternative.
Gove is an intelligent and erudite man who plainly enjoys the constitutional and legal arguments. But even he looked unconvinced by himself today. His reasoning took three forms:
Firstly, although he could not list anything that actually needed changing in the legislation, there was a "perception" that human rights had become a plaything of foreign criminals rather than a legal shield to guarantee the protection of British citizens. This needed to be addressed.
Secondly, he downplayed the relevance of the ECHR and the Human Rights Act. The British commitment to human rights existed before the Human Rights Act was published in 1997, he insisted. Canada was a decent human rights respecting nation, despite the fact it was not a member of the ECHR. It therefore followed that we can repeal the Human Rights Act without risking our reputation or our principles.
Finally, he insisted several times that the changes would be very small. Nothing worth getting upset about.
All of these points fail on the basis of his own reasoning, except for the third, which raises all sorts of other questions.
The first is a public relations argument, not a legal or political argument. It does not explain why the Human Rights Act needs repealing or even amending. It explains why we should do more to explain how the Act works, but that is not something Gove is undertaking to do. There is an unpleasant irony to hearing a Conservative justify repeal on the basis of public perception when Conservatives – in parliament and the press – have themselves done so much to misrepresent the Act to the public in the first place.
The second argument fails to distinguish between the context of an action and the action itself. Britain's commitment to human rights was not questioned on the basis that we did not have a Human Rights Act before the Human Rights Act existed, for the simple reason that the Human Rights Act did not exist. Canada is not criticised for not signing up to the ECHR for the simple reason that it is not in Europe. It would plainly be quite different for Britain to repeal the Human Rights Act now than it would have been when it did not exist. If this sounds like the garbled nonsense of a madman, it is because that is the logical level upon which Gove's arguments are being formulated.
But even if none of that were true, Gove's logic ignores the very perception he was only moments before treating as so important. It is plainly the case that any other country wanting to water down its human rights law would point to Britain – still seen as a world leader in human rights – doing the same. Gove said Britain's Human Rights Act had not prevented Putin doing what he liked. That's true, but you can be damn sure Putin will use our repeal of the Act to justify himself if we do. Tyrants around the world are already doing the same thing. Kenyan president Uhuru Kenyatta cited the Tory attack on human rights just days before appearing before the International Criminal Court in the Hague on charges of crimes against humanity. It’s not a matter of debate that it lowers the perception of Britain's commitment to human rights. It is a matter of fact. And honestly, when you are taking it upon yourself to repeal a piece of legislation called the Human Rights Act, it’s not a matter of fact which requires much substantiation.
The third argument falls apart on the basis of comparison with its repercussion. As Gove was informed during the committee hearing, the creation of a British bill of rights will see an almighty squabble with Scotland and Wales and the need to rewrite parts of the Northern Ireland Good Friday agreement. The Northern Ireland part is definite. The Scottish and Welsh part is currently unclear. Gove said the matter was neither reserved for Westminster nor devolved to Scotland. So where does it reside then, you might ask. On Mars? In Papua New Guinea? The justice secretary was told that it was like saying someone was a little bit pregnant. "If you can imagine a state of permanent pregnancy, that's what we have," he replied.
But regardless of the constitutional reality, or lack of it, Gove accepted it would cause an almighty fuss and that the SNP would look to maximise that fuss. That raises the question of why someone would go to all that trouble and take all that risk – "unravelling [the] constitutional knitting" as he himself put it – for what he admits is just a gloss on the existing law. Gove's answer was to say that people might draw their own conclusions about the SNP causing so much trouble for so little. Well fine, but they may also draw their own conclusions about the Tory party too, if it is willing to put Britain's vulnerable constitutional arrangements at risk for something they themselves admit is such a minor change.
It appears the main risk to Britain's human rights laws has passed. Whatever comes out in that consultation paper won’t be the nuclear option the Tories had hinted at. But it will still do all sorts of damage, both to Britain's constitutional arrangements and its international reputation. And the minister can’t even explain why he's doing it