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Daniel Hannan is one of the most persuasive advocates of repealing the Human Rights Act. In this week’s Spectator he was at his most eloquent and self-confident best, urging Michael Gove to see off the “powerful, wealthy & articulate” lawyers that prefer the rule of Strasbourg to that of the English common law, and warning of the “vicious” response to be expected from lawyers who, he asserts, might say – and even believe – that they are “defending the independence of the judiciary,” but are in fact motivated by the need to pay their mortgages and school fees, which are currently funded by a “multi-million pound industry … around human rights law.”

That last bit about money is rather a cheap shot. The notion that the Human Rights Act has spawned a “multi-million pound industry” is pretty far fetched. Very few cases are brought because of the Human Rights Act, and in the field of criminal law, where I practise, virtually none at all. Although the Act occasionally crops up during a criminal trial, its abolition would make no difference whatsoever to the volume of my work, or to my income and nor would it make any difference to that of the vast majority of my colleagues, very few of whom, incidentally, could begin to afford school fees out of their earnings at the bar, which have shrunk steadily since the Human Rights Act was passed.

But having got the lazy, crowd-pleasing dig against rich lawyers off his chest, Mr Hannan then turns to the meat of the issue with the two problems that, in his view, Mr Gove needs to solve. I hope I don’t do Mr Hannan an injustice if I label them in this way:

1. The Sovereignty Problem

The Human Rights Act “gives direct effect to the rulings of the Strasbourg court in Britain;” and

1. The Democracy Problem

The European Convention “cheapens democracy by allowing jurists to advance an agenda that would be rejected at the ballot box.”

Unfortunately, Mr Hannan’s argument, elegantly and persuasively as it is developed, displays the same utter confusion that lies at the heart of the Government’s policy on the issue.

Let’s start with the “Sovereignty problem.” Mr Hannan’s premise is that the Human Rights Act gives “direct effect” to the rulings of the European Court of Human Rights. That might indeed be a problem if it were true; but it isn’t. The Human Rights Act does not give direct effect to the rulings of the European Court of Human Rights. If your premise is wrong, then no matter how beautifully expressed the rest of your argument may be, it won’t hold water.

The relevant part of the Human Rights Act is Section 2, and all that that does is require British courts to “take into account any:

judgment, decision, declaration or advisory opinion of the European Court of Human Rights;”

Taking something “into account” does not mean agreeing with it, or necessarily obeying it. And as the English courts have made quite clear it certainly does not mean “giving direct effect to it.” For example, in the case of Vinter the European Court of Human Rights found in July 2013 that a whole-life term of imprisonment was incompatible with Article 3 of the Convention (which prohibits torture and inhuman and degrading treatment or punishment). It was a conclusion which the England and Wales Court of Appeal Criminal Division took into account, and then expressly disagreed with when, on the Attorney General’s application, it imposed a whole-life term on a double murderer in February 2014. It was a clash between the European Court of Human Rights and the Court of Appeal: and the Court of Appeal won. This was not a unique case: in 2009 the Supreme Court had declined to follow the European Court of Human Rights in Horncastle, a case about the admissibility in evidence of the statement of a deceased witness.

In those rare cases where the Strasbourg Court has prevailed – Mr Hannan cites its ruling that Abu Qatada should not be deported – it has not done so because the Human Rights Act gives it ultimate authority over British law (it does no such thing) but because the Government, like every government since Winston Churchill’s second administration, has agreed to abide by its judgments as a matter of international law. Unlike some international law, this is very simple. If a nation state signs a treaty committing it to do something, it must do it. The commitment in Article 46 (1) of the Convention could not be clearer:

“The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”

The Human Rights Act has no relevance to this: in particular, the Strasbourg Court’s decision on Abu Qatada, which Mr Hannan relies on heavily, had nothing to do with the Human Rights Act. It would make just as much sense to blame the Dangerous Dogs Act (and even more sense to repeal it). It is true that Qatada did, unsuccessfully, attempt to use the Human Rights Act in the English courts, but our Supreme Court, after considering the Human Rights Act, ruled against him.

I suppose you could just about call the Government’s commitment to abide by the Strasbourg Court’s decisions an infringement of sovereignty of sorts, but if so it is an infringement that we have lived with since 1953, and the sort that is happily accepted in many other international treaties about which no-one, even Mr Hannan, has ever shown any particular concern. Does anyone seriously suggest, for example, that the United Kingdom submitting to the arbitration provisions of the General Agreement on Tariffs and Trade is an appalling interference with national sovereignty? If so their criticism has been very muted.

What of the judgment, also mentioned by Mr Hannan, that the blanket ban on prisoners voting is an interference with their human rights? Again, it had everything to do with the European Convention but nothing whatever to do with the Human Rights Act. The prisoners could, and no doubt would, have taken their case to Strasbourg even if the Human Rights Act had never been passed.

As it happens, the outcome of the prisoners’ vote case demonstrates not the strength but the weakness of the European Court. Despite the Court’s repeated rulings that the ban on prisoners voting breaches their human rights, British prisoners still don’t have the vote. This would be a curious outcome if, as Mr Hannan says, the European Court’s rulings had “direct effect” in this country.

So to the extent that the Sovereignty Problem is actually a problem at all – and it really isn’t much of one – it has nothing to do with the Human Rights Act, it is a problem that arises out of the UK’s signature of the European Convention. Repealing the Human Rights Act will not have the slightest effect on that.

What, then, of the “Democracy Problem?”

Judges, says Mr Hannan, are routinely using the Human Rights Act to apply the Convention in ways that were never intended by its authors. In doing so, he says, they are ignoring what the law says, in favour of what they think the law ought to say.

This is certainly a legitimate concern, and the tension between applying existing law and making new law is, as he acknowledges, one that existed long before the Human Rights Act. To take but one example, when the House of Lords declared in 1991 that, contrary to the almost universally accepted view to the contrary, rape could take place within marriage it stretched the concept of judges “applying,” as opposed to “making” law almost to breaking point, and did so long before the Human Rights Act was passed. But the Human Rights Act, he suggests, has encouraged judges to use the open-ended language of the European Convention to extend law-making into places that ought to be the sole preserve of elected politicians. That is a perfectly defensible point of view.

But now his argument takes a strange turn. Having lambasted British judges for using the Human Rights Act to stretch the law to help undeserving litigants – Afghan hijackers, Libyan alcoholics and so on – you might have expected that his solution would be to get rid of the rights, at least as statutory legal entitlements open to judicial interpretation. That would have made logical sense, and would, at least slightly, hinder these politically minded judges bent on usurping the democratic will of the people.

But no: his solution to meddling judges playing at politics is not to abolish the rights but to keep them - and, what’s more, to augment them. To do this he suggests a huge amendment to the 1688 Bill of Rights. As well as the existing Convention rights (perhaps rebranded as “British” rights), Mr Hannan’s amended Bill of Rights will include guarantees of:

“… freedom of contract and employment, freedom from oppressive, arbitrary or punitive taxation.”

How a judge – even a red cheeked John Bull living entirely on roast beef – would be supposed to apply a new right of freedom from “punitive taxation” without trespassing on political ground is not explained. One would have thought that of all issues, setting the level of taxation was quintessentially one for Parliament rather than for judges.

As it happens, I rather like his idea of amending the Bill of Rights. There would be enormous practical problems in implementing it, but there is an attractive romanticism about the project. But the idea that such a Statute, containing all the existing rights of the European Convention plus one or two others deemed to be especially British, would in some way act as a brake upon the perceived problem of too much judicial intervention in political questions is simply nonsensical. On the contrary, given a British charter of human rights to work with, British judges would almost certainly feel emboldened to become more activist than ever before. Indeed, should they wish to avail themselves of it, it is hard to imagine anything that would give judges greater opportunity to “advance an agenda that would be rejected at the ballot box” than Mr Hannan’s proposed Bill of Rights.

So there we have it.

The solution to the perceived problem of the European Court of Human Rights having too much power?

Repeal an Act that has almost no effect on the European Court’s power.

The solution to the perceived problem of judges having too much power?

Pass an Act that gives them all the powers they already have, plus a few enormous extra ones for good measure, but call it the “British Bill of Rights” instead of the “Human Rights Act.”

I am sure Mr Gove will read Hannan’s piece carefully and after his spell as Education Secretary he may well find himself mentally marking it. How should he grade it?

As a polemic it deserves an A, and would have merited an A* before Mr Gove put an end to grade inflation.

As a coherent solution to the legal problems it identifies.… Well Mr Gove is, as Hannan says, “the politest man in Christendom.” Perhaps, rather than give it a grade he should just write at the bottom of the paper those two words that send a chill down the spine of even the most self-confident pupil:

“See me.”

*Hannan's response can be read here. 

This article first appeared at Barrister Blogger.