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“TAKING BACK CONTROL” — MYTH AND REALITY

The meaningless phrase “Brexit means Brexit” will continue to haunt Theresa May for as long as she is in politics.  But how much more meaningful is UKIP’s “Take back control” slogan?  Most Kippers seem to assume that “taking back control” will happen automatically – provided  there is a genuine Brexit enabling Britain to break free of the shackles of Brussels.

But this is an illusion.  There are much heavier clanking shackles than those of the EU: namely the shackles of the Judiciary – the domestic UK courts, which Brexiteers generally fondly imagine will “revert” to dispensing “pure British law” once the incubus of Brussels is removed.

Nothing could be further from the truth.  Here’s why:

  • For one thing, Brexit will not repeal the Human Rights Act 1998 (“the HRA”), incorporating most of the European Convention on Human Rights (“ECHR”) , which is supervised by the highly “politically correct” European Court of Human Rights sitting in Strasbourg – which has nothing to do with the EU but is a creature of a quite separate body known as the Council of Europe, made up of 47 member states.
  • The HRA says that the UK domestic courts “must take into account” any relevant judgments of the Strasbourg court, but it does not require the domestic courts to be bound by such decisions.  Nevertheless, in the words of former Lord Chancellor Derry Irvine, the UK courts have proceeded “on the false premise” that they are so bound (or as good as bound) – and sometimes even out-Strasbourg Strasbourg.  There is no reason why this will not continue after Brexit. [See Michael Arnheim, The Problem with Human Rights Law, 2015].  
  • What does this have to do with “taking back control”?  Everything, because it has resulted in government policy being hamstrung by the courts, notably in regard to national security.  For example, the UK courts regularly misinterpret ECHR Article 3, which prohibits torture and “inhuman or degrading treatment or punishment”.  Those subject to a deportation order by the government regularly object to deportation on the ground that this would expose them to treatment contrary to Article 3, and the UK courts have generally accepted this argument and have blocked numerous deportations accordingly  – rejecting the assurances obtained by the British Government from the foreign governments concerned that they would not ill-treat deportees.  It is worth noting that the UK courts have persisted in this wrong approach while the Strasbourg court itself has in the meantime adopted a less hardline approach.  
  • It is in any event a complete misinterpretation of ECHR Article 3 to make the UK Government responsible for what happens to deportees once they are returned to their home countries.  But Brexit will make no difference to the wrong approach adopted by the UK courts.  [See Michael Arnheim, A Practical Guide to Your Human Rights, 2017 (Paperback)].

“Political correctness” is supposed to safeguard  equal rights, but what it does in reality is to create a new form of privilege.  The “gay wedding cake” case provides a good illustration of this.  Ashers bakery in Belfast, owned by a devout Christian couple, was asked to bake a cake with icing reading “Support Gay Marriage”.  The Christian bakers refused, because they believe that gay marriage is sinful – and it also happens not to be legal in Northern Ireland.

The bakers were held by the Northern Ireland Court of Appeal to have unlawfully discriminated against the gay prospective customer, Gareth Lee, on grounds of sexual orientation.  According to this judgment, the Christian bakers were obliged to promote gay marriage, effectively enhancing Gareth Lee’s right to freedom of speech while their own right to freedom of speech under ECHR Article 10 was suppressed together with their right to freedom of religion under ECHR Article 9, as well as their right as a business to accept or reject any order.

In other words, gay values were accorded special privileges while the rights of Christians were trampled underfoot.  The case is now heading for the UK Supreme Court, where it is due to be heard in May 2018.  But, judging by previous decisions of that court, the Christian bakers are on yet another hiding to nothing.

Brexit will make absolutely no difference to the worrying tendency of the UK domestic courts to make up the law as they go along.  But don’t take my word for it.  Lord Neuberger, who has just retired ass President of the UK Supreme Court, has himself issued a salutary warning about this.  On 8 August 2017 he told the BBC:

“If [the government] doesn’t express clearly what the judges should do about decisions of the European Court of Justice (“ECJ”) after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best.”  

Adding,

“But to blame the judges for making the law when Parliament has failed to do so would be unfair.”

And:

“All judges “would hope and expect Parliament to spell out how the judges should approach that sort of issue after Brexit, and to spell it out in a statute.”  

For a judge actually to request parliamentary guidance in this way is unusual, to say the least – and more than welcome.  But why is it necessary?  Precisely because the real obstacle to “taking back control” is not  the EU but the UK’s own domestic judiciary.   

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About Dr Michael Arnheim (4 Articles)
Dr Michael Arnheim is a Barrister at Law

8 Comments on “TAKING BACK CONTROL” — MYTH AND REALITY

  1. Another defence used against the deportation of undesirable aliens under the HRA is the ‘right to family life’ which is interpretted to mean separation from kin, resident in this country including the family pet. In principle, our courts do not make up law but interpret laws created by Acts of Parliament, creating pecedents for situations where the law has not been specific. Unfortunately,the consequence of incorporating such as the ECHR into English law with its wooliness and constant ‘refinements’ gives liberal judges too much latitude in the process of interpretation.

    All members of the EU are obligated to incorporate the ECHR into domestic law, but there is no obligation to retain the HRA after Brexit apar from the an udertaking given by the Maybot; thee solution: get rid of the Maybot.

    On the issue of ECJ judgements, as far as I have understood it, the Supreme Court believe we may need to shadow these after Brexit in order for us to be able to maintain compliance with Single Market rules affecting trade; however, I’m not aware that we incorporate Japanese law in order to trade with Japan so why the future judgements of the ECJ are significant eludes me unless the Maybot agrees that we will remain spiritually locked in the EU penitentiary with all its prescriptive regulation post Brexit. After Brexit the Supreme Court aught to revert entirely to passing judgements in cases on appeal from lower courts.

    It should be born in mind that much of the garbage incorporated into English law from the EU originated with the UN such as the Climate Change Act. So we will also need to consider the removal of that and other present and future attempts at undermining Western civilisation originating from the UN such as those relating to Political Asylum where we are currently obligated not only by UN Convention but also further by EU law.

    As to the issue of which team will our judiciary be batting for after Brexit, we will have to wait and see.

  2. I disagree only with the last line ~ascribing blame to the UK’s judiciary.
    The real culprit is the UK’s ‘Parliament’ ~grossly undemocratic as it is, having been elected under the ludicrous Rotten Borough system of FPTP.
    A proper system of PR for Westminster ( I advocate adopting the current system of regional PR used for the Euro elections, but with the important improvement that as well as selecting Parties in order of preference the voter could [ if she chose ~it would not be obligatory ] select from amongst each Party’s List as to the candidate/s she preferred in the first, second, etc position. )
    This would give us a truly representative Parliament in which the electorate whether Labour / Tory or UKIP inclined could further select amongst candidates pro and anti Mass Uncontrolled Immigration / pro and anti the repeal of Human Rights Act and so on .
    I believe that if we at long last had a Parliament worthy of the name we could start to expect some decent, common sense, legislation to emerge from it, abolishing HRA and other nonsenses, increasing penalties for repeat, violent offenders, effectively enforcing immigration rules and expulsions of those flouting them and so on and on.
    So yes we must campaign for Brexit, accepting that it will not be the be all and end all, but in conjunction we should be campaigning, with others, for proper PR for Westminster.

    A great pity that Henry did not major on these two topics ( Proper Brexit and PR ) in his recent press conference ~ had he done so perhaps there would have been a smidgen of publicity for UKIP after a dearth of such for about six months ??

    • With respect, I must disagree in part. PR is at best irrelevant to achieving popular democracy. At worst it actually obstructs it by entrenching the power of centrist parties – look at the examples of France and Germany.

      And while Parliament is, of course, responsible for legislation like the HRA do not underestimate the power of the legal profession as an interest group within Parliament.

      For example, the leading Labour Brexit-blocker Keir Starmer MP and the leading Conservatve Brexit-blocker Dominic Grieve MP are both senior lawyers. And on a historical point, Tony Blair was a lawyer (as was his wife Cherie Blair).

      In passing it should also be mentioned that the legal profession as a whole has enjoyed a massive increase in fee income from the multi-million pound (or possibly multi-billion pound) human rights “industry”. Much of this fee income has been funded by the taxpayer through legal aid for groups such as asylum-seekers and prisoners.

      • Please no PR until we have finally and irrevocably left the EU.(that`s after the implementation period and the appeals against ending that period and then the period while we have a referendum on that result and then the re-run of the referendum to get the right result this time and then…………?
        Then, as far as I am concerned we can have PR in spades and live forever in a PR dream world where all initiative is destroyed under the yolk of universal corporate slavery.
        Why do I take this view? – born in 1935

  3. Re the last paragraph of “Taking Back Control”, it seems to me the allocation of blame is wrong: not the judiciary but Parliament.

    I think that under successive governments Parliament fails to produce good law, i.e. law that is complete and unambiguous. Likely this is because the quality of MPs in such matters is not up to the job. Too keen to be seen to be doing something and far too little attention to be legislating correctly.

    It may be the Civil Service are also culpable, but it is within the power of Parliament to ensure the Civil Service is fit for purpose.

    We might hope that the Lords, as a revising chamber, would correct flawed draft legislation, but the more they are stuffed with ex-MPs and time-served cronies the less likely they are to be effective in such a task.

    What we need is far less law all of which satisfies the judiciary’s need for clarity.

  4. I think RichardW strikes exactly the right balance.

  5. Dominic Greive leader of the Tory rebels is in a strong position to ensure that your and UKIP’s legal misgivings will continue post Brexit”. It’s an outrage that Greive and a few fellow unhinged rebels may be able to scupper such important principles. We need to play the man as well as the ball.

  6. Thank you, Dr Arnheim, for an excellent article with which I concur 90%.

    Tony Blair’s Human Rights Act 1998 is, in my opinion, the most oppressive statute enacted by Parliament in the last 200 years.

    Human Rights Act (hereafter the “HRA”) is a misnomer. A more accurate description would be the Political Correctness Act. The HRA effectively incorporates the doctrines of political correctness into the British constitution. It enables the judiciary (effectively if not in strict theory) to strike down legislation or government action which they adjudge to be insufficiently politically correct. The anti-democratic implications of this are huge.

    Nevertheless the 10% of your argument with which regretfully I must disagree is important. As a matter of priorities Brexit must come first. Only if we achieve Brexit can we recover our democracy so as to able to do something about anti-democratic injustices like the HRA.

    Brexit may not be sufficient to “take back control” but it is certainly necessary as a first step.

    Perhaps an analogy we can draw is with the Battle of Britain in WW2. Winning the Battle of Brtain may not have been sufficient to defeat Hitler but is was necessary to enable the war to continue.

    A war comprises many battles. The battle to achieve Brexit is still ongoing. IMO it is a battle we cannot afford to lose if further progress is to be made. We are best advised not to be distracted from until it is over – one way or the other.

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