The civil servants are the masters now – and our democracy suffers

Attempts to reform human rights law are being frustrated by liberal bureaucrats.

Islamist fanatics want rule by the sharia, their version of the law of God. They reject what they call “man-made” laws – the laws by which most nations live. For the same reason, Islamists reject democracy. It is a sham, they say, and an offence against God.

Those who support the untrammelled power of the European Court of Human Rights (ECHR) are the secular equivalent. They think that the European Convention on Human Rights and the Strasbourg court which enforces it are sacred. They believe these rights should be forced upon people everywhere, regardless of how anyone votes. Human rights are their sharia.

In Iran, the Guardian Council of senior clergy makes the final decision about whether anything passed by the parliament is compatible with Islamic law. In Europe, the ECHR has the same absolute authority over the decisions of all the member parliaments, including our own. True, its punishments do not (yet) involve stoning or the cutting off of hands, but the principle is the same: “We,” says the priesthood of human rights lawyers, “are in possession of the truth: no other power may stand against us.”

Even before he became Prime Minister, David Cameron was suspicious of the human rights theocrats. Once he had reached 10 Downing Street, he tried to do something about it. He set up a commission on a British Bill of Rights. The idea was not to get rid of human rights, but to bring them home. At present we have a situation in which, for example, the ECHR can rule that Britain must give prisoners the vote. No major political party and no large section of public opinion agree. Yet, under the present arrangements, there is absolutely nothing that our elected representatives can do about it.

Because we live under a coalition, and because Nick Clegg has made constitutional questions one of his special subjects, the membership of Mr Cameron’s commission is split between Liberals and Conservatives. The appointment of four Lib Dem choices and four Conservative ones gives the Liberals a power disproportionate to their parliamentary numbers. The chairman of the commission, Sir Leigh Lewis, formerly the top bureaucrat at the Department for Work and Pensions, has a Cleggy view of the world.

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Last week, Dr Michael Pinto-Duchinsky, one of the nominees from the Cameron camp, resigned from the commission. His essential complaint was that he could not get it to focus on the heart of the matter. In its 21 months of work, it has devoted only one solitary meeting to the question which, in his view – and that of the Prime Minister who set it up – is central. Dr Pinto-Duchinsky calls it “the politics of the last say”. If you wanted to be more constitutionally high-falutin, you could call it parliamentary sovereignty. He does not want to remove human rights from our law. He accepts and even welcomes the fact that judges’ decisions will sometimes challenge the decisions of politicians. But what he also argues is that elected legislators must have some power of “democratic override”.

At present, there is none. At least in the United States, where the Supreme Court is extremely strong, it is possible, though not easy, for the Congress to amend the constitution and thus the court’s powers. (You can see why this might be necessary when you recall that the Supreme Court in the mid-19th century upheld slavery in the US on the grounds that it was a property right. It took the Civil War to sort things out.) There is no last-resort ability to intervene with the ECHR. Although there is something called “the margin of appreciation” which allows the Strasbourg court to give discretion to member states in how they apply its judgments, this discretion is bestowed by the court itself, and cannot be expanded by the members. The 47 judges, some of them from countries such as Russia, Albania and Azerbaijan, where the phrase “human rights” attracts only a puzzled stare, are, in the politics of the last say, our dictators. As dictators are free to do, they take their time. The court has a backlog of more than 150,000 cases.

So if the commission won’t address this question of parliamentary sovereignty, its conclusions, expected at the end of this year, will make no difference. Anything it recommends will be a mere relabelling, some pious restatements of human rights, wrapped, for Mr Cameron’s political convenience, in the Union flag.

How is it, then, that a government is frustrated by the very people it appoints? Here we come to the huge problem nowadays of our permanent official and semi-official classes. So weak is Parliament, and so nervous is government of looking over-political, that these classes fill the gap left by “here today, gone tomorrow” politicians.

If you look, for example, at the public appointments rules introduced in the name of procedural correctness, or of “diversity” (which, by an Orwellian effect, really means uniformity), you will see that they are run by civil servants. Naturally, they choose people appealing to the civil servant’s cast of mind. Everywhere – in the appointment of peers or quangocrats, in IPSA, the body which decides on MPs’ expenses, or on the Committee for Standards in Public Life – unelected people lay down the moral law for the elected. They welcome the opinions of interest groups, and exclude those of the public and the people the public elect.

Thus, for example, all those charged with looking at the matter keep advocating that there should be state funding for political parties (in effect, nationalising them), despite the known reluctance of actual taxpayers to come across with the money for such a rotten cause. Even in Downing Street, itself, Mr Cameron has allowed the permanent machine to outmanoeuvre the political appointments brought in to enact his will. Off, on his bicycle, pedals his brilliant adviser, Steve Hilton. In the driving seat of the Rolls-Royce of officialdom purrs the ever more powerful new Cabinet Secretary, Sir Jeremy Heywood.

I am not arguing, of course, that elected people are personally morally better or wiser than unelected ones. We have many able and decent public servants (and several fairly useless MPs). My point is that the word “servant” is the key. You now hear the phrase “independent civil servants” as if such a thing were a part of our constitution. Yet it is a contradiction in terms. The civil servant serves. If he becomes “independent”, whom does he serve? The servant becomes master.

The problem came up this week in Parliament. The Public Accounts Committee wants to be able to question civil servants freely, forcing them to answer its questions. You can see why, when they now seem to act without any even theoretical reference to ministers. Yet if ministers are no longer responsible to Parliament for the actions of officials, then what are ministers for? The word “bureaucrat” means one who has power by virtue of occupying his office (the “bureau”). Democracies are supposed to be suspicious of that.

It is not a coincidence that such people favour the European Court of Human Rights. Great liberal jurists like Lord Lester, one of the Lib Dem members of the commission, instinctively dislike democracy. He calls the idea of ultimate democratic override of a court “reactionary”. Such people think of democracy as little more than a series of unenlightened opinion polls in which majorities vote to oppress minorities. For them, the ECHR is perfect. It is publicly funded, internationally guaranteed, unanswerable to anyone elected by anybody, and stuffed with people like themselves. For those same reasons, the rest of us should fear it.


By Charles Moore
7:58PM GMT 16 Mar 2012
https://www.telegraph.co.uk/news/uknews/law-and-order/9148649/The-civil-servants-are-the-masters-now-and-our-democracy-suffers.html