Hans Kelsen: His theories have led to a conflict between the human rights establishment and the democratic nation state (Credit: Kern, Fritz)
A telephone call brought my recent visit to Los Angeles to a sudden end. I was to return to London by the next flight. The simmering crisis in the UK Commission on a Bill of Rights over the issue of rule by judges versus democracy had come to the boil. It was time to go ahead with the contingency plans discussed for months with senior political allies. I would announce my resignation in the Sunday Times late on Saturday night, March 10. An interview on national television would follow the next day.
Despite its grandiose title, few in Britain and even fewer in other countries will even have heard of the commission. But it is significant for the internal politics of the coalition government and raises fundamental issues about democratic governance throughout the world.
The commission was formally established in March 2011 with a mandate to report by December 2012. After a great deal of wrangling within the coalition government and various vetoes of nominees, four members were appointed by the Prime Minister, David Cameron, and another four by his Liberal Democrat deputy, Nick Clegg. The commission was to recommend whether there should be a British Bill of Rights, as the Conservatives had promised in their election manifesto. It was also to advise on reform of the European Court of Human Rights in Strasbourg to whose rulings the UK has been obliged to adhere under the terms of the Human Rights Act (HRA) passed in 1998 by a Labour government with the active input of the Liberal Democrats.
All four of the Liberal Democrat appointees and all but one of the Conservative choices were senior lawyers. As a political scientist, I was the odd man out. The announcement of the commission's creation was held back for several days because the government found it hard to recruit a chair. After at least one person turned down the offer, the position went to the recently retired head official of the Department for Work and Pensions, Sir Leigh Lewis.
From the start, the auguries were poor. Though there had been a considerable overlap of opinion between Labour and the Conservatives in Parliament, the Liberal Democrats (with notable exceptions) were determined defenders of the post-1998 legal status quo. Clegg's selection of appointees all but guaranteed deadlock. They included Lord Lester of Herne Hill QC, the most inveterate of human rights activists. Lester wrote in December 2011 in The Times characterising the HRA, in whose passage he had played a leading role, as a work of genius. It was the capstone of his career. In 2009, he lectured in terms of admiration and awe about the European Court of Human Rights as "a beacon of hope for the 800 million peoples of Europe". Its staff were "Platonic guardians of the acquis".
In order to protect the HRA and the Strasbourg court, he set out to divert the commission from the matter of greatest concern to the Conservatives — the sovereignty of the UK legislature. In this project, he enjoyed the backing of the chair and secretariat (civil servants of the Ministry of Justice, a department with longstanding connections with the main human rights lobbies). One of Lester's key supporters on the commission wrote to the members advocating "headbanging" and a "reasonable exercise of brutal authority" by the chair to keep everyone in line. Thankfully, the chair did not take this advice literally. Instead, he gained his way at key points from July 2011 onwards by repeatedly threatening to resign unless the Conservative appointees bent to the Liberal Democrat line.
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