Today is a bad day to be a lawyer - and especially a judge - in Britain. Nor is it a great day to admit that you serve on a Parole Board.
Honest yeomen of England, egged on by the yellow press and our duplicitous Prime Minister, are trembling on the verge of coronary thrombosis at the news of two decisions, one by a court and one by a parole board. Both decisions seem to have been founded on the Human Rights Act, which enacted the European Convention on Human Rights directly into English Law. The only point of disagreement among popular journalists today is as to the precise degree of blame to attribute to the lawyers and judges concerned.
The scribes and their infuriated readers are all in error; an error the Government will exploit to the maximum in the months and years to come.
In the High Court yesterday, a judge ruled that nine Afghan hijackers were refugees and were entitled to remain in Britain. This is obviously of great concern. Mrs Thatcher protected us well at a time when international terrorism was as great a threat as today, by ensuring that any hijackers who came to Britain would stay and be punished for their crime. No deals. No surrender. If they killed the hostages, so be it, they would be punished all the more. It was hard, but it deterred hijackers from nominating a UK airport as their destination.
That was then. The adoption by the United Kingdom, as a member of the Council of Europe, of the European Convention on Human Rights means it is no longer so easy. The hijackers are humans and have rights too. If the proper interpretation of the Convention leads to such decisions as yesterday, that is not the judge's fault. It is Parliament's. It should not have ratified the Convention without foreseeing such consequences.
You can see the MPs' problem though. Who, as a politician, could be against "Human Rights", after all? Who, as a politician, would want to be the cause of headlines about Britain refusing to ratify such a worthy-sounding document? Still, their obligation to their constituents is to study and understand the laws they enact and the treaties they ratify. They failed.
They failed, alas, because most of them didn't try. Most of them are either mere "payroll vote" or "lobby fodder." They vote as the Whips direct them either from fear of losing favours earned, or in hope of future advancement. They vote as the whips direct them in support of Party spin-doctors' relentless quest for good headlines for their Party leaders.
In other democracies it might not matter so much. Where there is a Constitution that protects basic freedoms, legislators cannot do quite as much damage. The British Constitution essentially consists of three words however; "Parliament is sovereign". We have no protections, God help us, but the intelligence, integrity and courage of our Members of Parliament. The present poodles, hand-picked by their Parties from the outset for their suggestibility, for their "TV appeal", for their membership of fashionable minorities, for their class background - for any damn thing in short but their intelligence, integrity and courage, have betrayed us - almost to a man. They are the visible sign and symbol of our nation's decadence. How I crave a Cromwell to bid them "In the name of God, go!"
The judge concerned is coming in for serious "stick" in the blogosphere today, from usually "sound" bloggers. He is in that unenviable position because the Human Rights Act, by enacting the Convention directly into English Law, made it his job to interpret it. We were just as bound by the Convention before, you understand, but any embarrassing judicial decisions were taken by the European Court of Human Rights. Now it is one of our own judges who must take the heat. Poor guy.
Why then did he so criticise the Home Office? Was he not being political? Were successive Home Secretaries not doing the peoples' will by refusing to admit the hijackers as refugees? Yes, they certainly were. They tried desperately to avoid the consequences of the Convention when they were poltically inconvenient. In doing so, they acted illegally. You can't enforce laws selectively to suit your public image as a tough Home Secretary. The judge courageously took them to task for that, despite the shifty looks he will get in the pub for the rest of his life. He should get a medal. I would not be him today for all the uranium in Russia.
What then of the Parole Board which released Anthony Rice into the community, despite all previous recommendations to the contrary? This is a more tricky one. I am sure his lawyer did throw the Human Rights Act in the Parole Board's faces in the course of doing his professional best for his client. But that does not mean they were forced to take the decision they did. Rice was in jail after a fair trial and his circumstances had been subjected to miniscule review by endless well-meaning professionals. Perhaps surprisingly, given our perceptions of our probation officers and social workers, no-one seems to have recommended his release.
The officials who might have spoken against it seem not even to have been present. It seems more like a SNAFU to me; another example of the systemic incompetence inevitable when the role of the State is stretched too far. As a Labour MP remarked recently on another subject, the Home Secretary's job is so big that failures are inevitable. She spoke more truth than she knew, or at least than she understood. Rather than search fruitlessly for supermen, we should be reducing these jobs to a human scale.
You certainly can't blame a prisoner's lawyer for raising the best arguments he can. It is up to the Crown to oppose them and the tribunal to evaluate them. Mistakes will be made. This was a horribly tragic one. I would not like to be a member of that Parole Board this morning. While I cannot be so callous as to blame them (Rice did the killing, not them), I fear that they will be human enough to blame themselves.
The European Convention and the Human Rights Act are such dangerous weapons partly because they have such nice names. Who can be against "Human Rights?" Tribunals faced with arguments based on them must feel intimidated. Perhaps we should drop the snappy names for legislation and draft legislation? So often it is misleading. Take the "Legislative & Regulatory Reform Bill" which sounds as though butter wouldn't melt on its pages, but is perhaps the greatest threat to our democracy in a generation.
Perhaps we should revert to the old convention of naming Acts as [Name of Monarch], [year of reign], [sequential number]? Not so snappy, perhaps, but less prone to evoke emotion. It's a trivial point on which to end such a piece, but it's a better suggestion than to take up Falstaff's cry of "First, let's kill all the lawyers".
European Convention on Human Rights and its Five Protocols