Theresa May produced a pretty controversial cat out of her speech to the Conservative Party conference. Maya the cat was intended as a metaphor in an attack on the Human Rights Act and a wayward judiciary. Alas, it all turned bad. The cat ended up as an illustration of the need for a strong lord chancellor and a more thoughtful approach by the home secretary.
Let us skewer May with her own words: ‘We all know the stories about the Human Rights Act... about the illegal immigrant who cannot be deported because - and I am not making this up – he had a pet cat.’ We know two things about this statement. First, she was making it up. Second, so was UKIP leader Nigel Farage, from whose speech she nicked the example. Maya had not stopped the deportation of a Bolivian national who had overstayed his student visa.
Admittedly, she had played a bit part in an early judgment in the case. She was accepted as evidence, through her alleged joint ownership, that the applicant had a family life with his partner. However, the Bolivian finally got to stay in the country because the Home Office failed to follow its own procedures. In the final analysis, Maya did not matter. This point was speedily and publicly made, to their joint credit, by both the Ministry of Justice and the applicant’s solicitor, Barry O’Leary of Wesley Gryk.
May thus joins other politicians who have sought to make populist capital out of attacking judges. In doing so, she diminished herself, just as much as David Blunkett did when he went for Lord Woolf. Judges are tempting targets because they cannot immediately answer back. But such onslaughts tend to unravel, as they did on this occasion.
The most devastating case against the home secretary came not from her actual words. As a Tory lawyer at Justice’s conference fringe meeting remarked: ‘They would have been written by a 12-year-old in central office.’ The real problem was her own lack of judgement in not realising - or caring - that her speechwriter was likely to be over-egging the pudding. ‘I have never found, in a long experience of politics, that criticism is ever inhibited by ignorance,’ Harold Macmillan once remarked. No serious politician wants to line herself up to illustrate this urbane jibe.
There is a conspiracy theory that the row was deliberate. David Cameron, so the argument goes, needs an exit strategy from the coalition so that he can present his party as different from the Liberal Democrats at the next election. He has decided to make abolition of the Human Rights Act one of his ‘blue lines’. Thus, May was instructed to stir it up and the row about cats gave the issue high prominence. After all, the remark had got the UKIP conference on its feet. On this basis, truth doesn’t matter much; mood music is all.
Unfortunately, if there was a conspiracy, no one had thought to tell Kenneth Clarke. Out he came with ‘laughable and child-like’ as descriptions of his ministerial colleague. The lord chancellor’s intervention has been portrayed as the typical product of an idiosyncratic and severely ‘off message’ Clarke soon destined finally to lose his job. Few commentators have pointed out that he was effectively under a duty to speak out. Section 3(6) of the Constitutional Reform Act 2005 requires the lord chancellor to uphold the independence of the judiciary by giving necessary support and properly representing the public interest.
The precise words were hammered out in blood between lords Woolf and Falconer as part of the deal to get the act through a recalcitrant House of Lords. They probably had in mind financial matters, but the statutory duty is not so confined. There is a coherent case to be made that the Human Rights Act should be reviewed and even amended - though personally I disagree. More specifically, you could argue that the UK parliament might want to indicate the kind of balancing act it would like to see in cases where the right to family life is in question. Even more drastically, you could put the case - as, no doubt, would Farage - that the UK should pull out of the EU, the Council of Europe and the European Convention on Human Rights.
These are all arguments with which a serious home secretary might grapple. But lord save us from May’s trivialisation of such serious issues. Labour’s reform of the lord chancellor’s role in the Constitutional Reform Act was criticised on the grounds that the office would be degraded. This point was forcefully made by the last Conservative holder of the office in its old form, Lord Mackay.
He has hinted from time to time at his successful efforts behind the scenes to cool ministerial hotheads in Thatcher’s government. In evidence to a parliamentary committee, he pointed out some of the advantages of the old days: ‘There was a very big weight of responsibility; you were holding an office which had lasted from before the Norman Conquest… and you had a very, very responsible role in relation to the judiciary.’
May’s kidnapped cat screeches both for a grown-up debate about human rights and for the continuing need for an independent lord chancellor. Clarke cannot, despite his many fans, go on for ever. But, he must be replaced with someone whose style will, no doubt, be different. However, any successor must continue to have, in the words of Lord Mackay, ‘a very, very responsible role in relation to the judiciary’. So too, actually, should any serious home secretary.
Roger Smith is director of the law reform and human rights organisation Justice
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