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