A grown-up speech on human rights reform
25 October 2011
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.
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