Estragon’s boot: the Conservatives delay the repeal of the Human Rights Act

27th February 2016


Estragon, sitting on a low mound, is trying to repeal the Human Rights Act.

He pulls at it with both hands.

He gives up, rests, tries again.


According to a news report today, the Conservative government has “shelved” the proposals to repeal the Human Rights Act and replace it with a “British Bill of Rights”.

This is not a surprise. It was never going to be an easy task.

In the last week or so, the proposals – as well as a daft and dappy “Sovereignty Bill” proposal – have been nothing other than tokens in a political game between the Prime Minister and other Conservative politicians about supporting and opposing Brexit.  But the tokens turned out to have no value and no purchase in this game.

Last May this blog set out the “seven hurdles” for repeal of the Human Rights Act.  These hurdles included the facts that the Good Friday Agreement requires the European Convention on Human Rights to have local effect in Northern Ireland and that Scotland would have a veto on the replacement legislation.

These were real hurdles, and they could not be wished away in a game of tokens.

The hurdles are still there.


The Human Rights Act is not likely to be repealed this Parliament.

Even if the Conservatives could agree on the proposals, and somehow had solutions to the problems presented by Northern Ireland and Scotland, the parliamentary arithmetic is against them: it is an issue which divides the Conservatives and would unite the opposition parties in both houses.

The Act is not a perfect piece of legislation, even for supporters of human rights law.  It actually does not do a lot which could not be done by courts drawing on other, domestic case law; but it does enough.

And the Conservatives have begun to realise that it is not worth the time and the effort of repealing and replacing it.


Estragon with a supreme effort succeeds in pulling off his boot. He peers inside it, feels about inside it, turns it upside down, shakes it, looks on the ground to see if anything has fallen out, finds nothing, feels inside it again, staring sightlessly before him.



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With apologies to Samuel Beckett.

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Being neutral about Brexit

20th February 2016

I used to be a Eurosceptic and in large part I remain one; I am now just as wary of the bullshit from Westminster and Whitehall as I ever was of the bullshit from Brussels.

There is a lot for a small “l” liberal to dislike about the European Union.

Whatever “internationalist” credentials it has, they are off-set by its protectionalism against the rest of the world.  Its decision-making and policy-making have no transparency, and nobody seems ever responsible for anything. There is nothing “democratic” in any meaningful sense about any part of the EU which has genuine power. [**]

And, as I set out in the New Statesman in 2012, the EU has the habit of taking the credit for what has been achieved by other international arrangements, such as NATO and the ECHR.

It has always seemed strange that the big “l” and big “d” Liberal Democrats ever found anything liberal or democratic about the EU.  Perhaps it is all behind the scenes (which rather defeats the point).

But those (supposedly) in favour of UK “sovereignty” are often full of bullshit as well.

The current prime minister promotes the sovereignty of parliament whilst, in practice, encouraging departments to push through as much legislation as possible (and certainly not just EU-related legislation) as statutory instruments and other secondary legislation, which will rarely have any proper scrutiny.

In the UK, especially in England, most legislation is executive-driven, and at speed; the parliamentary stages are as much ceremonial window-dressing as the royal assent.  Even legislation which affects fundamental rights is just forced through, and only then if officials cannot get away without legislating.

And it is next-to-impossible to shift the public policy of any government department. Whoever wins the general election, the same senior civil servants (and those who influence them and have access to them) remain.  Things rarely change, as ministers come and go.

It is all an illiberal and undemocratic mess.

The only sensible response, it seems to me, is to strengthen the rights of the individual against the “state” – whether it be domestic or EU – both in being able to challenge decisions and laws in the courts, and to have access to a transparent policy-making process.

And so it is difficult to care ultimately about Brexit.  Both sides are alarmist, and both can pick out the weak spots in the other side’s positions whilst being blind to their own.

This is why this blog is neutral – as long as UK remains part of NATO and the ECHR.

It is not that I don’t know or care about UK and EU law and policy – I follow it all carefully and even advise on both domestic and EU law. I just cannot see what real difference the result will be from a liberal perspective. The illiberal – and undemocratic – misuses of public power will remain.

And to those in favour of Brexit who say ‘at least it will be “our” politicians who will make the decisions, and we can turn them out’, I reluctantly reply that this may be mere sentimentality. One can wish this is true, but sadly it is not.

In practice, policy-making and law-making in Whitehall and Westminster is just as illiberal – and undemocratic – as it is in Brussels and, if you take liberalism seriously, there is nothing to choose between them.


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**An earlier version of this post made a statement about the EU’s accounts not being signed-off by auditors; I have been told this is a “zombie fact” and so I have deleted it whilst I look at it again.