As the Scottish referendum demonstrated, the UK faces profound constitutional challenges in the near future, in which the British people are going to see a growing debate over fundamental issues of our governance.
It has also been clear for some time that one of those issues within the Conservative Party concerns human rights. In a political tradition that has no difficulty celebrating human rights enshrined in Magna Carta, habeas corpus and the Bill of Rights, we are mired in doubt as to the benefits of the ECHR and the Human Rights Act.
Both are attacked as giving rights to the so-called undeserving and fettering the state’s freedom of action to protect its citizens. Our obligation in international law to implement decisions of the Strasbourg court is criticised for ignoring the will of Parliament, where it clashes with previously enacted legislation, such as that denying convicted and sentenced prisoners the vote.
There is no doubt in my mind that the Strasbourg court has many problems. It was set up to deal with a small number of cases brought between sovereign states. But it has evolved into a final court of appeal for individuals who believe their Convention rights have been violated. With the adherence of previously totalitarian Eastern European states, aspiring to freedom and democracy, it struggles to meet the demand and the quality of its judges has been questioned.
It has also become susceptible to losing sight of the ‘margin of appreciation’, that should ensure that member states should have latitude in the way the Convention is interpreted in their own courts. The court’s decision on prisoner voting, which many including myself believe was mistaken, illustrates this drive to unnecessary micro management of national practises.
But the suggestion that we should therefore leave the Convention or seek to restrict its scope, in flagrant breach of our international obligations will not solve the problem.
Firstly it undermines our country’s standing in promoting human rights worldwide, something that we have properly made a centrepiece of our foreign policy. Why should other member states of the Council of Europe implement Strasbourg court judgments (which they generally do) if we do not? What message do we send to countries whose human rights we wish to improve when we are bent on undermining the international convention most respected in promoting them?
A full withdrawal or a deliberate policy on non-implementation of court decisions would also be very dangerous in exposing us to the risk of the European Court in Luxembourg stepping in to fill any gap by invoking the Charter of Fundamental Rights. It is settled UK policy to restrict the application of the principles of the Charter as far as possible. But if the UK
does not meet Convention standards it is likely to be viewed as being in breach of its EU treaty obligations, thus presenting an open invitation to The Luxembourg Court to get involved. Unlike the European Court of Human Rights, judgements of the European Court of Justice have direct effect. Unless we are leaving the EU, we could find ourselves more restricted than before.
It has furthermore been made clear within the Conservative Party that any replacement to the Human Rights Act in the form of a British Bill of Rights must include the rights protected by the Convention. This is hardly surprising as the rights themselves are principles shared by all right thinking people. But this means that our own Supreme Court will continue to interpret the Convention.
While I entirely support the principle that our Supreme Court should not be fettered to Strasbourg jurisprudence, the reality is that in the vast majority of issues its approach will lead to very similar outcomes and there will still be instances in which government ministers and the public do not approve of the result. We will thus have taken a sledgehammer to crack a nut.
Finally, whilst withdrawal from the Convention is perfectly possible legally, cherry picking the decisions of the court is not, unless we abandon every principle of international law and behave in an anarchic fashion. These principles are so important that observing our international legal obligations is enshrined in the ministerial code issued by the Prime Minister, to be observed by all public servants. I find it impossible to see how any Law Officer could sign off such a policy change.
There is an alternative way forward. Recent decisions by the Court of Human Rights in cases concerning the ban on political advertising in Britain and the permitted use of hearsay in our courts have shown a much greater responsiveness to the reasoned judgments of our own courts where areas of disagreement have arisen and led to a productive dialogue. Our own courts have become alive to the issue and have been willing to disagree with the Strasbourg court where they thought it right so to do.
The programme of reforming the court, in which I participated with Ken Clarke and which led to the Brighton Declaration in 2012, should generate further positive change in giving greater latitude to the interpretation of the Convention by our own courts. We would have been able to achieve more if it had not been for the anxiety, felt by some of our key partners in Scandinavia and elsewhere, that the UK might be seeking to undermine rather than reform the ECHR.
We pride ourselves rightly with our international engagement to try to create a better world. The ECHR is, along with the other thirteen thousand treaties which we have entered into since 1815, designed to further that process. It should not be lightly abandoned.
The Right Honourable Dominic Grieve QC is Member of Parliament for Beaconsfield and was Attorney-General, 2010 to 2014
This article first appeared in Crossbow, the magazine of the Bow Group, and is republished here with permission.