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Why David Cameron's "lurch to the right" must not be above the law


Like John Hirst, the former prisoner who studied law and put the UK on-the-spot about the proportionality of imposing a total ban on prisoners using the vote, David Cameron is not above the law. In a question on fox hunting once in Prime Minister’s Questions, Cameron voluntarily offered the information that he had not done anything unlawful; this was a stupid strategic error, as nobody had accused him of having done anything unlawful. The ‘rule of law’ holds the supremacy of the law, everyone is equal in front of the law, and nobody is above the law.

David Cameron does make the law however for the time-being. He can effectively do what he wants: hence the famous aphorism of parliamentary supremacy of Sir Leslie Stephen ((1832–1904), “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.” [The Science of Ethics, p. 145 (1882).]

Eastleigh was a tragedy for Cameron. Having set things up nicely on how his party would offer a referendum on Europe in 2015, which kept the Tory Euroskeptics happy for the time-being, the UKIP backlash was fully active last Thursday. Whilst UKIP does not have  a single MP yet, they still threaten the Conservatives with the power to deny them an overall majority. And yet, David Cameron knows that he cannot unilaterally have special terms for the UK’s membership of Europe. Sure, directives can be applied by our Government according to parliament’s wishes, but if he wants anything more he will have to leave Europe. He is not above the law, but he could repeal the European Communities Act (though it would be difficult for him to do so). Even if David Cameron decides that he wishes to tear up the Human Rights Act, he will still have to submit human rights allegations to Strasbourg unless he decides not to become a signatory to the European Convention of Human Rights. Louise Mensch has described that the Human Rights Act itself is faulty, whereas most learned experts feel that the implementation of its analysis could be improved, and we are better off doing the proverbial in the tent than outside it. Leaving the European Convention of Human Rights denies us any moral authority on commenting on the human rights of other jurisdictions, and sets out a very dangerous signal in terms of reputation on our attitude towards inalienable human rights as per Delhi for example.

The more insightful conclusion is that David Cameron is desperate. He was initially tolerated as Prime Minister, but generally even this has deteriorated to being positively loathed by people within his party and outside of it.  His Coalition, for example, has legislated for the Health and Social Care Act, which contains one clause section 259(10), which in conjunction with the Data Protection Act and Human Rights Act, is an area where the European Court of Human Rights could easily find the approach of GPs to data confidentiality unlawful; this could be determined one day in a test case similar to S and Marper v UK. It is helpful indeed that lawyers are able to act on poor legislation, as indeed they recently had to do with Iain Duncan-Smith’s mandatory work placement schemes (in the case of Cait Reilly). However, it is the democratic deficit, that laws appear to come from nowhere (and certainly not contained in any party manifesti at the time of the 2010 general election), which is most worrying. It is not so much a case of this Coalition ‘running out of things to do'; it is rather a case of this Coalition ‘running out of things to destroy’.

Unpacking the legacy of this Coalition is going to be extremely painful. George Osborne’s “badge of honour”, the triple A rating, was humiliatingly stripped off the Government, as Moody’s caste judgement on their deficit reduction plan. Construction performance hit a 41 month low this morning. Anyone with the most rudimentary understanding of economics will appreciate that the Coalition terminating ‘Building Schools for the Future’, and other key infrastructure projects, put the brakes on the economy which had been recovering in May 2010. Add to this an increase in 2.5% in the VAT rate, encouraged by corporate CEOs writing letters to the Times, and murder of consumer spending, and you can easily understand how corporate interests saw the UK’s economy being sent down the river. But it’s ok because we don’t have a functional BBC. The BBC, which is not covered by the Freedom of Information Act, is not obliged to explain its ‘creative authority’ for why its journalists never explain why the deficit exploded in 2009 due to a £1 tn recapitalisation of the banks. It does not need to explain either on the basis of its creative licence either why it barely mentioned the activities of the NHA Party in Eastleigh, or why the criticisms of the 2012 Health and Social Care Act (and the concomitant statutory instrument 2012/057) evade scrutiny. However, the reality is that the UK has been trashed like a Bullingdon restaurant party; whether this is the scrapping of the education support allowance, the implementation of tuition fees, the shutting of libraries, the poor regulation which allows ‘value’ horsemeat to be fed in school dinners, the privatisation of the NHS, the triple dip recession, rioting in the streets, or otherwise, the UK at the moment is a disgrace compared to what it could and should be. David Cameron’s “lurch to the right” will not get round that – his only way to get above the law is to rewrite it fast. The other way to get above the law is to annihilate access-to-justice, and by stopping access to the European Court of Human Rights, or any high street mechanism of achieving justice (for example, high street law centres or citizen advice bureaux). No comment.

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