3 June 2009

(At Least) Three reasons why Struan Stevenson MEP is a fool…

Tucked away in a corner of the Scotsman, I noticed that the Tories were up to funny business in the European Election Campaign yesterday. Their news release briskly advised that the:

“Scottish Conservatives have stepped up the final week of campaigning in the European elections with a promise to expose how the European Convention of Human Rights (ECHR) impacts on both public safety and Scotland’s criminal justice system.

Struan Stevenson, Scottish Conservative MEP, said…”

Lets just stop here, briefly. Why would Tories be campaigning about the European Convention on Human Rights in an election campaign concerning the Parliament of the European Union? As I never tire in pointing out, the Council of Europe under which the Convention institutions are organised is distinct from the European Union.

The European Parliament is not the originator of ECHR. It cannot alter ECHR. It cannot amend ECHR. Its views of the ECHR are of no more interest or concern for the ongoing life of the Council of Europe institutions than any private citizen’s, be he syphilitic or drunkard. Some people don’t know that. Which is fine. There is nothing wrong with not knowing a relatively obscure fact which does not particularly impinge on one’s life. Calling everything “European” only aggravates the problem and encourages people to draw erroneous conclusions.

And so apparently, as a matter of policy, do Scottish Conservatives. Getting the cretinous – and as will become painfully clear, apparently embarrassingly ignorant – Struan Stevenson MEP to dream up a quote about the ECHR amounts to a deliberate attempt to spread disinformation. Whether one approves or disapproves of legal recognition of human rights norms, or disbelieve in human rights, or favour radical democratic methods in preference – proliferating such grubby electioneering falsehoods merits only flat contempt.

And all that before Stevenson has uttered a word. Let’s see what he actually has to say.

“Ever since the Labour-led Scottish Executive incorporated ECHR into Scots’ Law in 2000, it has been a disaster. Under Labour, and now with the SNP’s relentless drive to create a soft-touch Scotland, the freedom of the accused has become more important than the protection of the public.”

How many basic errors of fact do you think an MEP can work into one nineteen-word sentence? How many a Scottish Conservative and Unionist MEP? The appalling answer is no less than three. That is one error per six and a bit words. And not little smudging inexactitudes, these. Stevenson apparently prefers his stonking blunders to be delivered naked, to show off the emptiness of his cranium to best effect.

Basic error of fact (1) The Labour-led Scottish Executive did not “incorporate” ECHR into Scots Law. That was done by the Labour-only Westminster Government in 1998. Basic error of fact (2) The Scotland Act 1998 provides that the legislative competence of the Scottish Parliament and the activities of the Scottish Ministers is constrained by the Human Rights Act 1998.

Scotland Act 1998

Section 29 Legislative competence

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply

(d) it is incompatible with any of the Convention rights or with Community law,

Section 57 (2)
A member of the Scottish Executive has no power to make any Subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.

The Scottish Executive plainly did not introduce the jurisprudence of the European Convention on Human Rights into Scots Law. Indeed, section 1(1) of the Scotland Act 1998 provides that the Scottish Parliament “cannot modify, or confer power by subordinate legislation to modify…” the Human Rights Act. (Schedule 4, section 1(2)(f))

Basic error of fact (3) As is obvious from the title, the “incorporation” question is a bit vaguer. The Human Rights Act was voted on and signed into law in 1998. However, most of the Human Rights Act only came into force in 2000. Whether the egregious Struan knows this is anyone’s guess. We could quibble about whether enactment or enforceability counts as “incorporation”. Given the two plain and basic errors in his first half a dozen words, we might reasonably sustain doubts about whether a vague but partially correct answer was accidental or not. For spite, and because Mr Stevenson has mightily aggravated me, I’m tabulating this one as another ‘error’.

And lets be plain. Nobody asked Stevenson about this. It isn’t an off the cuff response to an interview, forced from him without a textbook handy to confirm a few, profoundly elementary facts about the legislative concern he so flaccidly impugns. Dominic Grieve at least articulates what is – to my mind – an unconvincing case against the Human Rights Act. Stevenson merely blunders around, showily dropping technical names he only remotely comprehends. In short, he reveals himself as a dullard and a snob, wishing to be respected for his sagacity while simultaneous lacking the elements which might render him respectable.

As for the “disastrous” character of the European Convention on Human Rights, we’ll give Mr Stevenson more room to expand. Audi alteram partem, as the old Roman lawyers would have it. Listening is one of the basic precepts of natural justice. Striving to substantiate this “disaster”, and skirting sappy references to “soft-touch Scotland” for the sake of my blood pressure - Struan alleges that

“the accused has become more important than the protection of the public…”

He warms to his theme arguing that:

“Since ECHR was incorporated into Scots’ Law, the presumption against bail has been replaced with a presumption for bail, which has created many needless victims…”

You’ll notice various points about this. He is talking about accused persons only, not those who have been convicted. He also refers to “victims” and “protection” in a rather undifferentiated way, which may imply violence but not substantiate it. He does not engage with the broader question – what is the purpose of pre-trial detention – but immediately rushes to the most panicky, authoritarian justifications. The idea that bail “creates needless victims” is grossly insulting. Attackers, robbers and thieves create victims, not regimes of pre-trial imprisonment.

From my point of view, the political question ought to be on what basis should I deprive you of your liberty?

In some circumstances, there are very good arguments for pre-trial detention. In other cases, however, there are not. It isn’t possible to talk sensibly about it in general terms, without reference to particular offences, particular risks, and particular victims. If we peeled off Struan Stevenson’s scalp, excised what little pulp there remains of his brain, and replaced it with a gerbil, I confidently predict there is no risk of him unlawfully killing anyone thereafter. Whatever this scheme’s attractions, this is not a law-following argument. It is, at best, risk-centric, quasi-utilitarian calculation which gives no regard to ideas of rules or rights. It is a constitution of fear, merely an authoritarian credo of breathlessly offended generality.

“We have had the slopping out fiasco which has cost the taxpayer millions of pounds. Prisoners have used ECHR to mount a costly fight for the right to vote. And just this week we hear that prisoners at Saughton are launching legal action for compensation because they claim being handcuffed breaches their human rights.”

That “we hear” is a particularly nice touch, I thought. One can almost hear the lisping drawl on it, imagine the pained expression and the self-satisfaction of the lucky miner who has struck an inexhaustible seam of “common sense”. So, the European Convention on Human Rights is simply a bad thing because people can litigate on the basis of it? How unforeseeable! Naturally, the Tory’s smashing British Bill of Rights will miraculously exclude such namby pamby outings of the teddybear’s picnic brigade. Recork your good cheer, Struan. You’re hefting a sack of fool’s gold.

Roughly – and this is to put it provocatively – if we applied Struan’s “thinking” to the broader criminal law, he would object to laws criminalising rape, because it is possible for one person to fraudulently allege victimisation. There are plenty of nimious law cases brought, without foundation. We don’t blame the existence of a law of personal injury for dubious claims made by some. We don’t say lets do away with it and brand all claims in tort unjust and improper. We don’t say that because it is ludicrous. Surely the question must be “who wins”, rather than being offended by the possibility of argument. If Struan persists with his beliefs, then one can only conclude that his vision of the Tory Bill of Rights will be a decidedly curious document. Either that, or he won’t be able to support it, and will have his smarmy “disasters” flung back into his gormless phizog.

So what will be the difference? Why does the sleazy innuendo and coy conflations of European Union with Council of Europe warrant and justify the indictment of human rights norms? In the final phase of his wobbly disquisition, Stevenson piously recalls that

“We need a party that will stand up to this nonsense. Labour and the SNP cannot be trusted with ECHR and the Lib Dems would give more of our safeguards away. David Cameron has suggested a home-grown British Bill of Rights to reflect our values and traditions. Scottish Conservatives want Britain to be at the heart of Europe but not handcuffed to Europe.”

Interesting, the slight partisan division. SLaB are only untrustworthy, while the Liberals are somehow particularly dangerous hawkers of “our safeguards”. Quite what we are safeguarding here – or what the guards are, or indeed the ‘safes’ – isn’t particularly clear. Again, the muddling spirit which smudges the European Union and the Council of Europe seems to be making its smeary presence felt. Since we’re at the end of Mr Stevenson’s pitiful, dirgeworthy performance, I should make plain what will probably be very obvious: I think he is wrong on the ECHR and negates what fair points he might have made by his breathtaking ignorance and his shocking attempt wilfully to disinform the Scottish public. Some old, weary reiteratables. The European Convention on Human Rights does not embody alien values. I await with interest any detail of how a reassuringly cabbagey sounding “home-grown” Bill of Rights would innovate interestingly. Glib, meaningless jokes about being “handcuffed to Europe” scrupulously avoids the important issues, while strutting and fawning on the blandest of bland chauvinisms.

In this sense, I've probably done Struan Stevenson too much credit – his little spiel is almost too contemptibly ill-versed to warrant the rough going over I’ve given it. Such comments as he makes, however, are the hardy stuff of common currency. Misinformed, certainly, but the object of comment. As I’ve repeatedly said, I’m not against this. I’m interested in the case against human rights norms and am opposed to a gullible submission to their advocates’ claims to majesty and categorical rectitude. Dominic Grieve almost makes such a case. He at least puffs his arguments will a bit of detail, reference to verifiable facts, and a proper sense of what he is against.

In contrast, Struan Stevenson MEP is clearly just an oaf, making a bully’s case. If this is the best intellectual stuff of new Toryism - and they do, after all, sustain Stevenson at the top of their list - they deserve nobody's votes.


  1. I agree conflating the ECHR and the European Court of Justice (which is an EU insititution) is ignorant and deceitful.

    The reason they do it is quite simple though - it's "dog whistle" politics; as someone who is basically a 'conservative' this is one of the categories of behaviour that caused me to resign from the Party some years back; they say they are changing, and in some ways they have made progress, but then some fool like Struan comes out with this. Just like Bill Aitken, he is living several decades in the past. Sigh ...

  2. Just read this now, months after it was originally posted. Hilarious; especially the gerbil. A Misterpiece, as Flann O'Brien would say.

  3. I do love my Flann O'Brien. I recall with particular fondness the series in his Cruiskeen Lawn column about an ironic book-dishevelling service for the illiterate Dublin bourgeoisie, whose full but unread libraries could be spruced up by professionals to give their friends and acquaintances the impression of literary attainments. I may also have to revive my own 'catechism of cliché' here, now you'd prompted the memory.

    As for Stevenson, the man is a cretin. In the Delia Smith spirit, I should have mentioned that if you cannot get a gerbil at your local petshop - any minor rodent would suffice.

  4. One thing that has always intrigued me is that the Scotland Act means that any Scottish legislation passed by the Scottish Parliament can be struck down by the courts if found to be incompatible with ECHR. At westminster, by contrast the courts can only issue an slap on the wrists. This means that the bill drafting teams in Scotland are more conservative since to have legislation struck down by the courts would be a severe embarrassment. This has already meant that land reform legislation is more cautious than it might otherwise be.

  5. Thanks for the comment on this rather ancient post, Andy! Indeed - it is most interesting change, even if most challenges based on the ECHR have come to naught. Particularly interesting to think about the new generations of lawyers Scotland is producing - who have a wholly different, even post-Diceyan attitude towards the sovereignty of our legislative institutions. You certainly raise another important socio-legal dimension it'd be easy to miss.

    On a connected note, Love and Garbage and I recently had an interesting legal set-to about Holyrood's competence to legislate to hold a referendum on independence, given the constitutional reservations in the Scotland Act 1998 which you might have seen.

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