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Andrew Tettenborn: Whitehall’s human rights police swerve to the left


Don’t like Theresa May, don’t like Brexit and want some taxpayer-funded support for your position? Easy: the Government’s Equality and Human Rights Commission (budget, £20 million of your money) is happy to help. Last month this organisation published a so-called “Five-point plan on how Britain can keep and strengthen its status as a world leader on equality and human rights after we leave the European Union.” Entitled “A positive vision for equality and human rights in Britain”, many of its proposals are, shall we say, not immediately identifiable as neutral electorally.

Exhibit 1

“Equality and human rights laws … that are derived from EU law, such as those on accessible transport for disabled people and maternity and parental rights, should only be amended by procedures which allow for rigorous parliamentary scrutiny, such as the super affirmative procedure.”

This may or may not be a good suggestion: but no intelligent voter will fail to see that almost every Conservative or Ukip candidate will disagree, while every Lib Dem or Labour Remainer candidate will love it, and Gina Miller will be dancing in the street.

Exhibit 2

“Equality and human rights laws that are currently underpinned by EU law, like … those on … workers’ rights, should be retained”. Furthermore, not only must the case law of the European Court of Justice when we leave continue to apply here, but we must “consider how to ensure UK courts keep up with future case law developments at the CJEU and courts in other countries that share our values.”

Same comment: the first of these could easily have been written by Jeremy Corbyn, the second by Tim Farron.

Exhibit 3

“The UK should remain a committed party to the European Convention on Human Rights and ratify its Protocol 12, which would replace the right to non-discrimination in Article 21 in the EU Charter of Fundamental Rights.”

For information: at present the ECHR has no general provision for non-discrimination except for the rights it actually protects and a few closely-related areas. Protocol 12 aims to change that and provide a free-standing right to equality across the board (“The enjoyment of any right set forth by law shall be secured without discrimination on any ground …”). To say that this would replace the EU Charter of Fundamental Rights is disingenuous. Barring the application of EU law, the Charter is of no force in the UK; if Protocol 12 were ratified it, or at least its non-discrimination provisions, would be in force in the UK. Whatever Theresa May’s views about getting out of the ECHR, one thing is certain: a wholesale extension of it like this would be anathema to her and most Tory members, but music to the ears of Labour and the Lib Dems.

Exhibit 4

“The UK’s … future trade agreements should contain human rights and democracy clauses that, at a minimum, meet current EU standards.”

Oh dear. Remember Liam Fox in the Philippines and the whinging by Labour and the Lib Dems, who said that government should refuse to help our businesses and those abroad if this was necessary to bring foreigners to heel and make them accept our views on human rights? Once again, the Commission’s suggestion is pure Labour and Remainiac policy, and unacceptable to the large majority of Conservatives.

I could go on, referring for instance to the recommendation that “all the original provisions of the Equality Act 2010, such as the socio-economic duty and protection from combined discrimination, should be brought into force and implemented in England, Scotland and Wales, and the Public Sector Equality Duty should be strengthened. This would maximise the potential of the Equality Act’s protections to heal those divisions in society that became acutely apparent around the EU referendum” – something you could be forgiven for thinking came straight out of a classic Guardian editorial. But you get the point: the Commission is happy to come across as an organisation whose senior management, if forced to shake hands with a Tory MP, would immediately repair to the lavatory to wash them afterwards.

The problem is obvious: a great deal said by the Commission in its report calls seriously into question the principle of impartiality of the Civil Service. True, the Commission is strictly speaking not a ministry or department but a Blair-era statutory non-departmental body (even if, by a supreme irony, it comes under the remit of its “sponsoring body”, the Department of Education). But its employees are still civil servants, and are still bound by strict rules on lobbying, including a ban on anything party political or liable to misrepresentation as being party political. True, the report was published before the election was called: the fact remains that what it said is highly contentious in a party political sense.

Memo to Theresa May: once the election is out of the way, there is a strong case for reining in super-outfits like this one. Impartial enforcement of the law is one thing: patent political posturing is something else. There’s nothing wrong with grandstanding and campaigning, for human rights or for that matter any other fashionable cause, good or bad. But there’s everything wrong when organisations financed by your money and mine start to get in on this particular act.

(Image: Howard Lake)

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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