Ken Clarke explains why Parliament should not control everything – and kicks Theresa May too


One of the sad things about modern politics is how utterly dull it is. The Cabinet is full of grey men, like Philip Hammond and Ed Davey, as well as highly polished men, like George Osborne, Nick Clegg and David Cameron. They have all learnt the art of never saying anything that will offend anybody by never saying anything at all. Except, of course, for Ken Clarke. The Justice Secretary was on the Today Programme this morning, discussing Theresa May's apparent failure to deport Abu Qatada, the terrorism suspect known as Osama Bin Laden's emissary in Europe, who May announced would be deported on Tuesday.

On Today, Mr Clarke made it quite clear that he doesn't really back his colleague. "There is a possibility they got it wrong", he said, of Home Office lawyers, adding that he's "not sure what the big deal is". Of course, the Home Secretary "could well be proved right", he said. But you felt like the unspoken line was, "but she usually isn't", after their spat over whether or not having a cat can stop you getting deported at Tory conference last year.

Anyway, that's interesting because David Cameron likes Theresa May and dislikes Ken Clarke, who tends to make the Prime Minister look inexperienced and shallow, and also generates bad headlines in the Sun. But I was interested in what Mr Clarke had to say about reforming the ECHR more generally. Lots of Tory MPs, such as David Davis and Dominic Raab, reckon that Parliament should have the right to overturn its decisions.

On Today, Ken Clarke pointed out that this is ludicrous. If Britain's (very nice) parliament had the right to overturn ECHR decisions, so too would the (much nastier) parliaments in other places. Here's an excerpt of what he said:

The only country that doesn't go through this process is Belarus; it doesn't belong to the Convention, the government never loses cases, their president signs a piece of paper, they've got some very good gulags, and they're probably prepared to be deported from Belarus because the way they're treated by Belarus is very bad.

He went on to say that while Parliament should have control over certain things, like the franchise, "you certainly can't have your parliament pass a vote to reverse a judgement in a court of law". As he concluded, "you'll be taking us back to the Tudor monarchs if you start doing that."

He's absolutely right. MPs like Raab and Davis view democracy as a means whereby nation states make sovereign decisions through representative assemblies. But Clarke's point is Alex de Tocqueville's: such a democracy can lead to a tyranny of the majority. Parliament is an elected body, and so it is not an absolute guarantor of the rights of minorities. An international court, staffed by professional judges and overseen by other countries, is, at least in theory.

And that is, of course, precisely why Britain helped set it up in 1959: the whole point was to protect human rights in countries where governments couldn't necessarily be trusted to do it. The reason why it is so overwhelmed today is because lots of dodgy countries, like Russia, are now party to it. That is the backbone of the case for reform. But it is also the case for staying in the court.

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