A grown-up speech on human rights reform

25 October 2011 by

At around the same time that 79 Conservative Party MPs were rebelling over a European referendum, the Conservative Attorney General was giving a very interesting speech entitled European Convention on Human Rights – Current Challenges.

In a month in which the Justice Secretary called part of the Home Secretary’s speech on human rights “laughable” and “childlike”, Dominic Grieve presented a refreshingly grown-up argument on human rights reform.

The speech is worth reading in full. Grieve presented the Government’s arguments, most of them already well-known, on why the Human Rights Act needs to be replaced by a Bill of Rights. There were no big surprises; his central theme, subsidiarity, that is the European Court giving member states more space to set their local social policy, is something which the Justice Secretary has spoken about – see my post on his evidence to the European Scrutiny Committee.

One of the key problems the Government has with the court at the moment is over prisoner votes, and Grieve announced that he would personally be making the government’s case when it intervenes in an Italian prisoner vote case, Scoppola (see my post explaining why this is happening).

But even allowing for the prisoner voting spat, which is not just about political posturing, the tone of the speech was pro, rather than anti, human rights. Grieve made many references to the “great deal of polemic” that “often generate rather more heat than light”, but also strongly emphasised that the European Convention on Human Rights is here to stay:

There is no question of the United Kingdom withdrawing from the Convention. The United Kingdom signed the Convention on the first day it was open for signature on 4 November 1950. The United Kingdom was the first country to ratify the Convention the following year. The United Kingdom will not be the first country to leave the Convention.


The benefits of remaining within the Convention and retaining our position as a leader of the international community are seen by the government to be fundamental to our national interest.

And those benefits are clear:

The Convention has already resulted in widespread changes all across Europe – for example, the decriminalisation of homosexuality, the recognition of the freedom of religion in former Soviet countries, the prevention of ill-treatment by the police and the removal of military judges from civilian courts. This is important work and must continue.

This is an oblique but important acceptance that national judges do not always get it right; something this Government has never said.

Nevertheless, Grieve reiterated the Government’s intention to push forward reform of the European Court of Human Rights when it takes on the chairmanship next month, supporting some of the proposals raised by the Bill of Rights Commission.

Why a Bill of Rights? This is probably the most interesting bit of the speech. Grieve rightly explained that the Human Rights Act does not embody human rights law in the UK; it is merely the mechanism by which they are enshrined in our law. He quoted Lord Judge’s recent comments to the Lord Constitution Committtee – see my post – on section 2(1) of the Act, which states courts must “take into account” decisions of the European Court of Human Rights, but does not explain exactly what that means. He offered a potential solution:

If the current system is not working we could positively provide for a right of rebuttal, as Lady Justice Arden put it in her Thomas More Lecture, which allows the Supreme Court to be able to say to the Strasbourg court that it has not made the principle clear, or that it has not applied the principle consistently, or that is has misunderstood national law or the impact of its decisions on the UK legal system.

Finally, he made a spirited plea for better understanding of human rights in the UK:

We need to challenge the myths, some of them ludicrous, that have grown up about human rights, particularly in some sections of the media and which I often get repeated to me by concerned constituents. We need to see our part, as a legal fraternity to be to make sure the law is understood.

Hear hear. It is notable that it is those ministers who come from the “legal fraternity” – Grieve and Ken Clarke – who are doing most to examine the case on human rights from a legal as opposed to emotive perspective.

Grieve’s speech will not please everybody. However sophisticated his arguments, the speech is still a statement of Government policy to replace the Human Rights Act. This is an act which many consider is just fine, or at most could be reformed without being replaced.

But at least somebody in the Government, aside from Ken Clarke, is making the case for reform intelligently and clearly. This is in strong contrast to the recent catcalls, and indeed to the Bill of Rights Commission’s own consultation document, which bizarrely presented no case at all. Hopefully, this beacon of calm will not be subsumed in the wider rebellion against all things European.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more


  1. Hardly a grown up speech on human rights reform.

    I am very familiar with the Interlaken process and the European law principle of subsidiarity. Baroness Scotland, as Grieve’s predecessor, reaffirmed the UK’s commitments to abide by the Convention and Court decisions. The agreed Interlaken Declaration not only dealt with reforms of the Court but also reforms within Member States. Both Clarke and Grieve have ignored the latter. Both failed to take responsibility for 3,500 prisoners votes cases backlogged at the Court.

    Grieve talks but fails to act. As he sets out on his mission to tilt at windmills in Strasbourg, I have launched an action in the UK. It is childish of him to blame the Court for the UK’s failure to fully comply with the Hirst No2 decision. Even more childish to seek to appeal via Scoppola the judgment in my case.

    Proposal 6 of the Interlaken Declaration reads: “Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level”. And given that both Clarke and Grieve agree that it is down to the UK, I have lodged my claim arguing along the lines of the subsidiarity principle.

    1. “Grieve talks but fails to act.”

      This is the favourite delaying tactic of the UK, which is often coupled with the tactic of pretending that the ball is in somebody else’s court, usually that of the ECtHR. And all along hoping that everybody will just forget that a final human rights judgement is not being implemented as it should.

  2. ObiterJ says:

    Quote – “He offered a potential solution:

    If the current system is not working we could positively provide for a right of rebuttal, as Lady Justice Arden put it in her Thomas More Lecture, which allows the Supreme Court to be able to say to the Strasbourg court that it has not made the principle clear, or that it has not applied the principle consistently, or that is has misunderstood national law or the impact of its decisions on the UK legal system.”

    1. Is the system “not working” – very debatable. I think it is.

    2. I see no reason why the Supreme Court could not say those things now as part of the so-called dialaogue.

    Welcome as this more sensible speech is, we are perhaps seeing here a deliberate attempt within government to get away from the stupidity of the Party Conference season and to present a respectable veneer on what will eventually prove to be a very minimalist version of human rights set out in a UK Bill. (That’s my forecast anyway). After the Bill, Strasbourg will remain “out there” as it did before the HRA 98 and as it does since but the minimalist Bill will force more people to undertake the arduous and uncertain journey which, of course, they may well be unable to even commence without adequate legal aid. I am afraid that – just like the EU – the political eurosceptics are in the ascendancy and their desire for the levers of power to return to Westminster may well prevail. I fear that this will be to the detriment of future generations.

  3. Stephen says:

    It is interesting to read that Dominic Grieve describes prisoner votes as “social policy”. Under this description voting is to be treated no differently from social security matters and the like. In contrast, The ECHR regards enfranchisement matters as a human right. Perhaps therein lies the problem. If the UK state wants to enforce its casual and cavalier attitude to enfranchisement matters then perhaps it should seek to eliminate Article 3 of Protocol 1 from the ECHR. It is difficult to see how banning prisoners from voting can comply with the Convention unless Article 3 is removed.

  4. Tim Heywood says:

    The Attorney’s speech is indeed worth reading in full. As one might expect it is a well articulated statement of the current Government’s concerns about how Strasbourg case law is interpreted in the UK courts. But the speech says nothing about what precisely is objectionable in the HRA nor does it spell out what it is this Government believes a new Bill of Rights could give us (the citizen) or indeed the government of the day (in terms of balance) that the HRA doesn’t already. The examples given by the Attorney all appear, to me at least, to be matters that could be fully addressed by a combinaion of (i) more consistently robust judgments in the UK Courts (relying on the concept of subsidiarity that the Attorney mentions); (ii)a more responsible media in terms of how it reports HRA issues; and (iii) a less risk averse public sector (since there are numerous genuine examples of authorities misinterpeting the Act as conferring rights that simply don’t exist).

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: