The post LISTEN: Tory Leadership Election Podcast 2022 – Episode Six appeared first on Conservative Home.
Helen Barnard is Director of Research and Policy at Pro Bono Economics.
Ballot papers are beginning to land on Conservative Party members’ doormats. The leadership contest is viewed by some as a fight for the heart of the party – a chance to truly define modern conservatism.
Underlying this is the question of whether the electoral coalition which delivered a stonking majority in 2019 can be held together without the twin factors of Brexit and Boris.
Character and communication are as important as policy in determining which way members move, and it’s fair to assume that policy positions laid out in the heat of a contest don’t necessarily predict everything the next government will do.
But the issues each candidate chooses to focus on, as well as their policy prescriptions, do give significant indications of the direction they want to take the country in.
The issues that have received by far the most airtime are the timing of tax cuts and the role of public borrowing in funding responses to the cost of living crisis and measures to improve growth. Other issues, such as housing, immigration and the NHS, have received more attention as the contest has progressed, though still lag far behind.
But, so far, both the leadership contenders and those questioning them seem to have overlooked an enormous swathe of conservative tradition, which has always viewed solutions to national challenges as not just lying with the state or businesses, but bubbling up from communities and families.
Within this tradition, civil society and charities are seen as playing a crucial role in building social capital and resilience, innovating and enabling communities to create their own responses to the issues they face.
Early on, the Johnson Government was criticised for focusing its levelling up agenda too narrowly on hard infrastructure (such as new train lines and bridges) and overlooking the importance of social infrastructure (services like childcare and training, and the community groups, spaces and relationships which support community life).
The Levelling Up White Paper marked a decisive turning point, setting out goals which looked beyond pay and productivity and encompassed ,wellbeing and community pride. Its analysis of the causes of places being ‘left behind’ highlighted the role of social, human and institutional capital, as well as physical and financial capital.
The white paper was light on concrete policies, but gave many hope that it had laid the groundwork for an approach that could finally make progress on the UK’s enormous geographical inequalities.
In the first televised debate, both candidates committed to continuing the levelling up agenda. But the narrow focus of the leadership debate so far signals a potential risk that the leadership takes a step backwards in its conception of how to achieve it.
Retreating to a narrower focus on taxes and public spending would be a mistake. There is a huge opportunity to be seized in harnessing the power and ingenuity that lies within communities, and the charities and groups which build trust and connections between people. The vaccine rollout stands as a striking example of what can be achieved when the public sector, charities and business combine their resources.
Across all three televised debates neither candidate has mentioned the role of charities or civil society, despite both being patrons of charities themselves (Rishi Sunak of the National Osteoporosis Support Group, Leyburn Brass Band and Wensleydale Wheels community transport project, and Liz Truss of the Ulysses Trust, a volunteer and Cadet Force charity).
There was a fleeting mention in the second debate, when an audience member spoke of relying on a charity for support through his cancer treatment. Even then however, the discussion immediately focused on the performance of the NHS. There was no acknowledgement of the vital role played by the social sector, both in directly delivering healthcare and preventing future demand through its wider role in communities.
The competition to be seen as the true heir of Margaret Thatcher understandably prompts fierce debate about taxes, sound money and the role of the state. But Britain’s first female premier had strong views about the vital role of voluntary associations and philanthropy, as well as the importance of the state supporting and enabling communities to act for themselves through civil society.
This tradition is alive and well in the party. Polling shows the vast majority of Conservative MPs and councillors are in contact with charities and community groups and recognise their important role in local and national life. Similarly, 84 per cent of Conservative voters believe charities and community groups play an important role in our society.
When the new prime minister takes office in September, they will speedily have to get to grips with the cost-of-living crisis, which looks even more forbidding after the Bank of England’s latest forecast of inflation reaching 13 per cent and a year-long recession. They are fortunate to be able to call on the ideas and ingenuity of innumerable charities and community groups, backed by philanthropists, business and public donations, as well as government funding.
Alongside the big calls they will need to make on taxes and the autumn Budget, the next prime minister would also do well to strengthen their government’s links with these vital civil society actors and increase the ability to leverage in philanthropic investment where it is most needed.
Without this, there is a real risk that their response to our big national challenges will be hamstrung and unstable – relying exclusively on the state and business, not reinforced by the third pillar of civil society.
Drought to be declared in southwest England
“A drought is expected to be declared for southwest England as the government meets with water companies today to discuss a dry spell that scientists fear could persist well into the autumn. The National Drought Group, which also includes the National Farmers’ Union and environmental groups, will convene as a heatwave sits over most of the southern half of England and parts of eastern Wales, with temperatures up to 36C forecast over the weekend. Fears of water shortages are spreading, with Yorkshire Water today announcing a hosepipe ban covering its five million households would start on August 26.” – The Times
- Hosepipe bans to last for months – The i
- Around 17 million people are already affected – Daily Mail
- Water restrictions, fire risks and farming hardship – The Guardian
Energy 1) Truss rules out windfall tax on energy companies
“Liz Truss on Thursday night rejected calls to increase the windfall tax on energy companies to fund cost of living handouts for households, saying profit is not a “dirty word”. The Foreign Secretary said she was “absolutely” against such taxes, arguing that such a policy approach would be taken by Labour. The remarks are her clearest yet on the subject and come despite the Treasury devising an expansion of the windfall tax as an option for the next prime minister. As a new forecast predicted that annual energy bills could soar to more than £5,000 next April, Ms Truss also said she would lift the ban on fracking.” – Daily Telegraph
- She insists that tax cuts will always be her ‘first port of call’ – Daily Mail
- How much profit do energy companies make? – The Times
Energy 2) Ex-Chancellor’s plan to cancel out energy price rises
“Rishi Sunak has set out plans that he hopes would cover the total cost of rising energy bills for up to 16 million vulnerable people, as he challenged Liz Truss to follow suit. In an article for The Times the former chancellor said he was prepared to find up to £10 billion to soften the impact of this October’s price rise on top of the support announced by the government in May. Every household would benefit from a £200 reduction in their bills by abolishing VAT on energy, in a challenge to Truss, who has said only that she would consider the measures.” – The Times
- Brits would see £200 slashed from energy bills – The Sun
- Sunak brands Truss ‘immoral’ after she compared him to Brown… – The Sun
- …and insists tax plans could put millions at risk of ‘real destitution’ – The Guardian
- He won’t quit the race… – Daily Express
- …even though third of Tory members have already voted in ‘major blow’ – The Sun
>Today: ToryDiary: Oh, what a wonderful leadership election!
Energy 3) Rishi Sunak: We have a tried-and-tested strategy for supporting most vulnerable
“Today I can be very clear about the principles underpinning my approach, I can reasonably estimate what is likely to be required and I can explain how we pay for that. Firstly, there are three parts to my plan: support for the most vulnerable, support for pensioners and some support for everyone. The first two groups will need the most help because these are people who simply cannot increase their incomes to meet their energy costs and are the most vulnerable in society. For them, we have an existing channel by which we can get money to them quickly: the welfare system.” – The Times
- Tories can no longer avoid telling hard truths about the route out of this mess – Lord Frost, Daily Telegraph
Energy 4) Industry told to help with cost of living or risk windfall tax
“Energy companies have been told to use their “huge” profits to help consumers or risk further windfall taxes. Boris Johnson unexpectedly joined a meeting of big energy producers yesterday and said they must do more to help people struggling to pay their bills. After analysis predicted that energy bills could top £5,000 next year, Nadhim Zahawi, the chancellor, told the big electricity companies the cost of living crisis was “not just the government’s problem”. Urging a “spirit of national unity”, he challenged energy bosses to come up with ways to soften the impact of soaring bills.” – The Times
- Booming energy giants face tougher windfall tax as bills set ‘to hit £4,400’ – The Sun
- Johnson warns firms soaring bills will damage sector – The Guardian
- Downing Street’s crisis summit offered cash-strapped Brits no answer – The Sun
- British energy bills forecast to soar above £5,000 next year – FT
- Energy giants to hand shareholders £10bn, equivalent of £363 per UK household – The Sun
- Kwarteng contradicts Tory policy on wood pellets – Daily Mail
- Clive Moffatt in Comment: To prevent the lights going out this winter, the Government must take drastic action
- James Blagden in Think Tanks: The polling is clear: scrapping Net Zero would be a disaster for the Conservatives
Truss vows to strengthen Johnson’s social media law to protect free speech
“Boris Johnson’s social media crackdown will be strengthened to protect free speech, Liz Truss has vowed. She promised to ensure the flagship Online Safety Bill does not encroach on people’s rights. Senior Tories have blasted the legislation for telling Silicon Valley firms to police “legal but harmful” posts. They fear it will overstep the mark. Ms Truss said she “strongly agreed” adults should have the same rights online as they do in the real world. She said: “That’s a really important principle and I’ll make sure the Online Safety Bill reflects that.”” – The Sun
- ‘Gutsy’ Foreign Secretary is a potential nightmare for Labour, say party strategists – FT
- MP who took £5,000 from Sunak backs Truss – The Times
- Badenoch becomes first Tory to be promised a top job in Truss’ team… – The Sun
- …as she praises her former rival as ‘maverick’ and hails her ‘unpredictability’ – Daily Mail
>Yesterday: Suella Braverman MP in Comment: The abuse of human rights, the long tail of Blairism, the corrosive role of Strasbourg – and what we’ll do about it
Johnson calls in lawyers over looming punishment
“Boris Johnson is taking legal advice over a privileges committee investigation as those close to him accept it is a “foregone conclusion” that he will be found in contempt of parliament. The prime minister is fighting to save his seat by arguing for a lenient punishment that would avoid a recall petition. A petition could result in his leaving the Commons only weeks after being pushed out of Downing Street. Some of Johnson’s senior team have all but given up hope of escaping censure after the committee of MPs who will decide his fate concluded that he did not have to have knowingly misled the Commons to be found in contempt.” – The Times
Putin is now ‘unlikely to ever succeed’ in occupying Ukraine, Wallace says
“Vladimir Putin is now ‘unlikely to ever succeed’ in occupying Ukraine, Ben Wallace has said, as Britain pledged more financial and military support for the country. The Defence Secretary said Russia’s invasion has ‘faltered’ and is ‘starting to fail in many areas’ as he co-hosted a conference of donors in Copenhagen on Thursday. He also described huge losses of both personnel and military equipment it has suffered in the near six months since Putin launched a ‘special military operation’ on February 24… The UK has pledged to send multiple-launch rocket systems to Ukraine, as well as precision guided missiles which can strike targets up to 50 miles away – designed to defend against Russian heavy artillery.” – Daily Mail
Starmer ‘missing’ over cost-of-living crisis
“Sir Keir Starmer, the Labour leader, was on Thursday night accused of being “missing” over the cost of living crisis as Left-wing MPs backed Gordon Brown’s demand for a recall of Parliament. Sir Keir, who returns to work from holiday on Friday, has infuriated backbenchers with an “eerie” silence over spiralling energy bills. In his absence Mr Brown, the former prime minister, has put forward plans to bring down gas and electricity bills by temporarily renationalising some providers. The proposals were well received by Labour MPs, who demanded that Sir Keir “go further” by calling for a new cost of living rescue package.” – Daily Telegraph
- Former Tory backer makes donation to Labour leader – The Times
- Biggest UK fall in real wages for 100 years looms, warns TUC – The Guardian
- Junior doctors in strike ballot threat over ‘unacceptable’ pay offer – Daily Mail
- Train drivers’ union boss warns members are in for ‘long haul’ in UK rail dispute – FT
- Teachers’ union issues fresh strike threat – Daily Mail
- Brown has exposed the truth: Starmer is Labour leader in name only – Dan Hodges, Daily Mail
Corbyn refused permission to lodge an appeal at the Supreme Court in libel case
“Jeremy Corbyn has been refused permission to lodge an appeal at the Supreme Court in a libel claim brought against the former Labour leader by a political blogger. Commentator Richard Millett, 50, is suing Mr Corbyn over remarks he made during an interview on the BBC’s Andrew Marr show in 2018 when he was leader of the opposition. Mr Corbyn, who now sits as an Independent MP, claims he was defending himself against allegations of antisemitism when he made the comments and is contesting the case.” – Daily Mail
- Lammy breached MPs’ code of conduct – Daily Telegraph
- Anger as Plaid Cymru restores whip to MP cautioned for assaulting wife – The Guardian
“Coco Pops have lost their sparkle since the sugar tax,” a connoisseur of breakfast cereals lamented the other day. Many commentators posit a similar decline in Conservative leadership races, for the present one sparkles only intermittently.
Nobody says how wonderful it is that Conservative members are even now voting for the next leader of their party – a right successfully defended by Tim Montgomerie when he founded ConHome in 2005.
Nobody remarks that the hustings being held all round the country, last night in Cheltenham, give members admirable opportunities to question the candidates, and to show what they think of the answers given.
It is true that Liz Truss and Rishi Sunak cannot sparkle all the time. Often they have to resort to the stump speech and the stock reply.
They find themselves accused of lack of originality, as if it were possible, or desirable, always to be original. “Men of Letters, fond of distinguishing themselves, are rarely averse to innovation,” as Edmund Burke observed in his Reflections on the Revolution in France.
But for Conservatives, true wisdom lies more often in the rediscovery of neglected truths than in the invention of new ones.
And the candidates’ ability to perform, and to adapt, under pressure is being tested pretty well by this admittedly somewhat protracted election. Sunak, as the underdog, has demonstrated a capacity to become increasingly forceful, as when he asserted last night that a refusal to extend direct help with energy bills to the poorest would be “a moral failure” for which “the country will never ever forgive us”.
Whatever merits this peaceful, orderly, democratic leadership election may possess are taken for granted. How much easier it is to pour scorn on the whole process, and to suggest it can have no good outcome.
In a recent blog – reprinted by The Spectator under the headline “The crisis at the heart of the Conservative Party” – John Oxley posited an analogy with the cockpit voice recordings recovered from the black box after a crash:
“In those final fateful moments, you can observe highly intelligent, highly trained professionals making error after error, gradually dooming them and their passengers. Despite the ringing alarms of the onboard systems, they lose sight of what they are doing or how to avoid the impending doom. They pull the joystick instead of releasing it, they shut down the working engine instead of the failing one, or sometimes the two pilots pull in different directions, cancelling each other out. Eventually, they hit the Point of No Return and, shortly after, the ground.
“The current Conservative leadership election has a similar atmosphere. Every day in this interminably long contest, the final two candidates fire out press releases and half-formed policy proposals, only to wind them back in – flailing around the controls they want to wield in a month’s time. Meanwhile, the country heads towards crisis.”
But when has the country not been heading towards crisis? I defy any reader to name a period in history when prudent people have not warned: “All this is going to end in tears.”
Every time we cross the street might end in tears, every twinge of pain could herald incurable illness, every triumph can turn in a moment to disaster.
And every Conservative leadership contest is inglorious. The party itself is often discontented with both the process and the result.
The press is excited by bad news and bored when things go well. It searches out deficiencies, which is in many ways a valuable thing to do, for it acts as a check on corruption.
But this means anything which is working as it should goes unreported. When did you last read an article about the in recent years excellent safety record on British railways?
Various ways in which the Conservative Party works well go unremarked even by those who report most closely on its activities.
The party has prospered since the 1830s by working out what the nation needs, and by providing this more quickly than the Opposition.
In order to discover what the nation needs, it is necessary to have an argument, or indeed many arguments. Some of these are occurring during the leadership contest.
The press reports this as “blue on blue attacks”. It is actually an essential process of debate, which might benefit from being more violent and wide-ranging than it is.
I do not for one moment mean to imply, as a rationalist might, that the clash of opinions will lead to the right answers. But there is at least a chance it will lead to less bad answers.
We need not allow ourselves to be deluded by various pundits who imply that if only ministers were as far-sighted and incorruptible as the better kind of newspaper columnist, we would find ourselves entering a state of technocratic bliss.
Nor should we depress ourselves by comparing the squabbles of the present day to an imaginary past when Olympian figures ruled with majestic wisdom and no group of Tories ever ventured to fight tooth and nail against some other group of Tories for control of the party.
Chips Channon, Conservative MP for Southend-on-Sea from 1935-58, describes in his brilliant Diaries, edited by Simon Heffer, the reaction of many Tories – including Lord Dunglass, who as Sir Alec Douglas-Home would go on to serve as Prime Minister, and Rab Butler, who unexpectedly missed becoming PM – to the replacement on 10th May 1940 of Neville Chamberlain by Winston Churchill:
“Alec Dunglass and Jock Colville arrived in our rooms and told us the terrible tale. The PM [Chamberlain] had just come back from the Palace, Winston had kissed hands and was now Premier…We were all sad, angry and felt cheated and outwitted. England in her darkest hour had surrendered her destiny to the greatest opportunist and political adventurer alive!! Rab was cold, and added that if Halifax and Chamberlain allowed themselves to be duped and bamboozled by Winston, that arch scoundrel, they deserved to be. Alec who more than any other has been with the Prime Minister these past few weeks and knows his moods and actions, let himself go. He had been dethroned by treachery to which Winston was a party – he could not resist the temptation. It had been his life’s ambition, and with the prize dangling so near him he had seized it. I opened a bottle of champagne, Krug 1920, and we four loyal adherents of Mr Chamberlain drank his health, ‘To the King over the water,’ I said. Then we parted, but not before we had resolved to ‘get him out’ as soon as possible. Winston, with too much rope, is certain to crash one day.”
One of the delights of Channon is that he is so often wrong. But it is undoubtedly true that a great many Conservative MPs distrusted Churchill in May 1940, refused to cheer him on his first appearances as Prime Minister, and remained loyal to Chamberlain.
The story we tell ourselves afterwards is often at variance with how things seem at the time, and so, one may guess, it will prove on this occasion.
George Yarrow is an Emeritus Fellow of Hertford College, Oxford, and was a co-founder of the Regulatory Policy Institute.
In the context of the decision to close the Tavistock Clinic, Kemi Badenoch wrote recently about her personal experiences as a Minister in dealing with the Civil Service. It was the latest in a longish string of expressions of dissatisfaction with this relationship. Tony Blair complained about “the scars on my back” from his attempts at public sector reform; John Reid, when Home Secretary, told MPs that the Home Office’s Immigration Directorate was “not fit for purpose”; and in his Speaker’s Lecture of 2017, Francis Maude identified a number of system-wide failings in Civil Service conduct and performance, the general message being that ‘things ain’t what they used to be’.
The issues raised are of utmost importance because of the centrality of the relationships between Ministers and civil servants in the development and implementation of public policies. Major failures in this process, which appear to have been increasing in frequency in recent decades, can place very heavy burdens on the public, particularly in economic policy areas (the focus of the remarks that follow).
To address the challenges posed by institutional failures, it’s advisable to start by examining some of the root causes of dysfunctions. I will summarise four.
First, and considered as a whole, the Civil Service is an entrenched, hegemonic institution. It enjoys monopolistic powers over its domain and, as Adam Smith put it, monopoly “is a great enemy of good management”. Competitive pressures motivate sustained search to discover better ways of doing things, whatever the activity, be it science, sport, or business. When it comes to the Civil Service, this source of pressure to raise performance standards is very weak: organisational inefficiency and limited of drive for improvement can therefore be expected to be the norm.
Second, the existence of strong power of influence attracts those who would want that power exercised in ways favourable to their own partisan, generally narrow, interest. The interests can be of a financial or ideological nature, or the two combined. The aim is the same whatever the cause: to tilt Ministerial agendas away from a broader balancing of public interests by prioritising a particular, specific aspect of them. And, in its dealings with Ministers. the Civil Service is itself partisan. It brings its own interests to the table, for example in defending or seeking to increase its budgets and powers,
Third, there is a selection bias in recruitment: it attracts candidates who have a more than average keenness for exerting influence themselves. The message, sometimes made explicit in recruitment advertisements, is ‘you may be able to get a higher salary elsewhere, but here you will be able to influence government policy’. The mischiefs that flow from this are rooted in the way work on policy development is structured and sequenced. There is devil in the detail and the detail is largely left to middle ranking officials, done prior to the final judgment of a Minister. Settling the various issues of detail requires judgments to be made and these can be heavily influenced by the beliefs and sense of priorities of the individual officials involved. It’s remarkable how a few changes in words can significantly change the effects of a regulation. ‘Here you will be able to influence government policy’ is not a fraudulent promise.
Fourth and finally, there is the obstinate fact that in most circumstances, at most times, most Ministers do not express a strong demand for truthful, impartial information and advice. They are themselves partisans, though distinguished from, and elevated above, other partisans by having been elected. Their special interests in today’s politics tend to be ‘the narrative’ and ‘the retail offer’ (to the public) and, if those things become ministerial preoccupations, the Civil Service will tend to have greater scope for deviating from the pursuit of impartiality.
So, given these sorts of factors at work, what might be done about them?
The key insight is, I think, recognition that the supply of truthful information and objective advice is not an inherently monopolistic activity. If major dysfunctions are rooted in monopoly/hegemony, then de-monopolisation is the obvious go-to policy principle, best done as a process, taken step by step. There should be no great concern about the size of early steps: it’s the direction of travel that matters more, via its effects on expectations today, which affect behaviour today.
My suggestion is to establish a new structure to institutionalise/normalise Ministerial choice of sources of information and advice beyond the regular channels, to put at least some competitive pressure on the established structures (stronger if usage had negative implications for departmental budgets) and to promote cognitive diversity. It could also be expected to have indirect effects: a Civil Service with weakened influence on Ministers would be a less attractive target for partisan lobbying, could help mitigate selection bias, and be a less attractive option for individuals keen on influencing government policy.
We can know that the introduction of competing alternatives to the status quo is feasible, because it has been done. UK vaccine procurement is the outstanding example of recent times, done with great success.
A much earlier example, from which I think significant learning can be had, was the Peacock Committee on Broadcasting (1985/6). In those days broadcasting was the responsibility of the Home Office. Doubting the capacity of the Office to handle questions concerning the effects on the broadcasting ecology of allowing the BBC to draw finance from advertising, Sir Alan Peacock called in two small teams of economists to each answer the questions. The ‘outside’ teams were instructed not to talk to each other, or to the Home Office team. In the event, the two ‘outside’ teams took different lines of attack on the problem, but came up with closely similar quantifications of the likely effects. The Committee accepted the relevant conclusions and the Government accepted the Peacock recommendations. With high likelihood, the right decision on BBC financing in the circumstances of the time was made.
Such ‘bypasses’ of the regular Civil Service have been infrequent, depending on serendipitous conjunctions of individuals and circumstances. Hence my stress on the institutionalisation of the bypass option, so that it is always at hand for a Minister, just as the regular Civil Service is.
To fly some kites, its characteristics might be as follows. Provisional name: the Government Economic Intelligence and Strategy Service (GEISS). Separated from the regular Civil Service in all respects. Staffers subject to a Code based on the Civil Service Code (old principles redux), but tightened and broadened to encompass conduct in teams. Staffed by specialised, highly skilled, highly paid, full-time professionals, relatively few in number, working in small platoons (the Bezos two-pizza rule is a rough guide: if the team can’t be fed on two pizzas. the team’s too big). No administrative clutter. Sustained deliberation, but fast responses to calls for urgency. Main base in a sizeable city without a parliament, but with a leisure-friendly hinterland (important for recruitment). No talking with the Civil Service (see Peacock). No meetings with lobbyists (documentary communication only). Ministers the only clients.
The initial focus might be on risk assessment, economic strategy development, and ‘change management’, these being activities where the biggest economic policy errors have been occurring (in the strategy case by tolerating a void). Massively costly assessment mistakes have been made in relation to the 2008 financial crash, post-referendum Brexit options, Covid regulations, and a whole sequence of energy policy decisions.
As for sporadic bypass we can be confident this could potentially work, because institutionalisation of risk assessment and of strategy is observable in the intelligence and security services and in the armed forces (see GCHQ in Cheltenham, strategic analysis in the higher military ranks) and there we find an area of government where performance has been in the better part of the spectrum.
Suella Braverman is Attorney General, and is MP for Fareham.
We have a rich heritage of rights in the UK. Though we’ve sometimes fallen short, a belief in equality has been persistent enough in our culture that we’ve always had loud voices calling on us to mend our ways — as with slavery. We now have a large body of rights for people who work in factories, building sites, drive HGVs, and work nights. We’ve passed anti-discrimination laws when it comes to disability and sex. We now, rightly, have a right to compassionate leave, paternity leave, maternity leave and shared parental leave.
But there is now a serious risk that a blinkered approach to rights in some areas is harming the overall balance of rights in society. The judicially expanded European Convention on Human Rights and New Labour’s Human Rights Act marked a radical change in how fundamental rights are protected in the UK, with alarming constitutional and practical consequences.
We now have a ‘rights culture’ in a way that did not exist prior to 1998 — and this has caused confusion and distress in some areas. In my view, many of the difficult cases we have seen, have been symptomatic of this long tail of Blairism.
In the late 1970s the European Court of Human Rights in Strasbourg introduced the so-called “living instrument” doctrine and began to interpret the Convention in ways that cannot be squared with the intentions of the signatories. The doctrine hides the uncertainties of human rights behind the claimed certainties of judicial decision making.
In his Reith Lecture, Lord Sumption observed that by interpreting the Convention as a living instrument, the Strasbourg Court recognises rights which states did not intend to grant, and which are not within the Convention’s original object and purpose. This is contrary to legally binding norms of treaty interpretation. This is why he described the Convention as a “dynamic treaty”. In his words, the result is “to transfer an essentially legislative power to an international body standing outside the constitutional framework of the United Kingdom.”
The Strasbourg bench of judges is composed of justices from continental legal systems who are used to operating without a formal doctrine of binding precedent. This means that their habit is to force the ‘right’ result in the case — even if that means straining the law — with less of a focus on how that case will influence future cases. When coupled with the living instrument doctrine, the Convention has rapidly and unpredictably expanded. As Lord Hoffmann has said, this has meant that the Convention is given meanings “which could not possibly have been intended by its subscribers”.
Stark examples of the real-world impact of the living instrument doctrine include the expansion of Article 8, the right for respect of private and family life. The Convention originally conceived this right as guarding against overbearing Government intervention in family life — like arbitrary house searches by the police — as a direct reaction to authoritarianism. However, this right has been radically extended today.
Take the case of a Nigerian national — called OO by the court — who was sentenced in 2016 to four years in prison for offences including possessing crack cocaine and heroin with the intention to supply, and then pleaded guilty in 2017 to battery and assault. In 2020, the First-tier Tribunal allowed his appeal against deportation on grounds that OO’s “very significant obstacles” to integration in Nigeria outweighed the public interest in his deportation, despite the serious nature of his offending, and deportation was irreconcilable with Article 8 (the right to respect for private and family life). The Upper Tribunal upheld that decision on appeal.
After a series of contradictory decisions by the Strasbourg Court, more procedural burdens were created by our Supreme Court in AM (Zimbabwe) v Home Secretary in 2020. States wishing to remove someone must now prove that the medical facilities available to the deportee in their home country would remove any real risk that their lifespan would be shortened by removal from NHS facilities. When someone is being deported from a developed to a developing country this will often be the case. This places an increased burden on our national resources and extends the concept of “fundamental rights” beyond what was originally intended.
In short, the Strasbourg Court has operated to thwart aspects of our domestic policy making in relation to illegal migration. This conclusion is aptly demonstrated by the authoritative study for Policy Exchange by John Finnis and Simon Murray, and strongly endorsed by Lord Hoffmann.
When the Human Rights Act came into force, domestic courts were empowered to oversee rights protection and stand in judgement over decisions made by Parliament and government about how best to act. At the time, extensive efforts were put into training judges in this new rights framework and how it should be interpreted.
This created a direct avenue for Strasbourg interpretive methods to pervade British judicial reasoning. The intensive standard of proportionality under the Human Rights Act — in contrast to the British common sense test of Wednesbury unreasonableness (A decision is “Wednesbury unreasonable” if it is so unreasonable that no reasonable person acting reasonably could have made it) — has proven problematic. A clear example is in relation to its use enabling Convention rights as defences to criminal damage charges.
In the Ziegler case, the UK Supreme Court set aside several protestors’ convictions for wilfully obstructing a highway. It held that in light of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the Convention, protestors can claim a ‘lawful excuse’ for deliberate physically obstructive conduct even where it prevents other users from exercising their rights to pass along the highway.
In the Colston statue case, the trial judge directed the jury that, before they could convict for criminal damage, the jury must be sure that doing so would be a ‘proportionate interference’ — in other words compatible — with the defendants’ exercise of their human rights. The legal uncertainty that these cases illustrate prompted me to refer questions of law to the Court of Appeal.
These questions concern the proper scope of defences to criminal charges arising from protests, and the directions which should be given to juries in such cases. My referral will not overturn the acquittals in this case but the backlash that I have received for merely making a reference — on a point of law! — demonstrates how politicised and inflamed many of these issues have become, precisely because they have been removed from the political arena and placed in unattackable court rooms. There was at least one other voice of reason in this media storm: retired Old Bailey judge Charles Wide. His Policy Exchange paper made it very clear that there was a compelling case for referral. We await the Court of Appeal’s decision.
This Government’s reforms to the Human Rights Act will bring welcome predictability to these imported and vague Human Rights standards. They will prevent trivial human rights claims from wasting judges’ time and wasting taxpayer’s money by introducing a permission stage in court, requiring claimants to show they have suffered a significant disadvantage before their claim can go ahead. They will also reinforce in law the principle that responsibilities to society are as important as personal rights by ensuring courts consider a claimant’s relevant conduct, like criminal behaviour, when awarding damages.
No matter what side of the debate one takes on the scope of fundamental rights, and what the law ought to be, the primary and legitimate vehicle to resolve disagreement is Parliament. The reason for this is simple and yet profound: our Parliament is elected by the people, for the people, to enable self-government. Ultimately it is up to Parliament — the voice of the people and our highest source of law — to give clear answers to these questions.
This article is based on a speech that the Attorney General gave to Policy Exchange yesterday. The full text of which can be found here.