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.
Moreover,
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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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.
“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.
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.
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.
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).