The UK in the European Convention: fudge, or a shining example?

9 October 2014 by

DSC02566Brick Court Chambers Public Law Event 2014: Is it time for the common law to break free from Europe?

Last night’s discussion at Gray’s Inn Hall featured a panel with  Dominic Grieve QC MP (formerly Attorney General), Lord Judge (formerly Lord Chief Justice), Bella Sankey (Policy Director, Liberty), Martin Howe QC (member of the Commission on a British Bill of Rights), David Anderson QC (Independent Reviewer of Terrorism Legislation), all chaired by  Shaun Ley of the BBC.

The Conservative Party’s proposal which sparked off the debate  was that the UK will withdraw from the European Convention on Human Rights after the 2015 election unless the European Council of Ministers accepts our proposal that our own common law and statute fulfils the UK’s international obligations.

Martin Howe, a QC most closely involved with this move, simply didn’t understand why it has caused such a “furore”.  Other countries, like Canada and New Zealand, have statutes setting out human rights without having to belong to a regional system. What is so inadequate about the UK’s protection of rights that it should be shackled to Strasbourg, particularly with that court’s history of spending the past sixty years

 inventing entirely new doctrines, not based on the wording of the Convention – in many respects contrary to its express wording

This is an intolerable situation, Howe believes, and it has to be resolved.

Lord Judge was concerned with the tendency to gloss over the hard nosed constitutional question of parliamentary sovereignty and the precise status of the Human Rights Act.

The issue of what is binding on us, and how anything binding is to be implemented has been fudged, fudged from the very start of the Human Rights Act.

Article 46 of the Convention obliges the signatory states to “undertake to abide by the final judgment of the Court in any case to which they are parties”.  But it nevertheless remains clear that the UK never gave Strasbourg the same authority as the European Court of Justice. The prisoner voting issue encapsulates the problem. Are we really saying that if Strasbourg insists that prisoners should have the vote, there must be a way of forcing our parliament to abrogate the current laws that prevent prisoners voting? We argue about treaty obligations, but we don’t ask ourselves the question that Ireland and Germany have answered with their written constitutions, about how we should respond when Strasbourg asks us to do what our unwritten constitution prevents us from doing. This, it seems to Lord Judge, seems ” a very strange constitutional arrangement.”

If it is  impossible to implement a Convention obligation, then we cannot and constitutionally speaking should not do it.

We need to present human rights to this controversy as specifically as possible, otherwise it will remain a political debate masquerading as a legal one. When we talk about “human rights” as a whole – motherhood and apple pie and all that – no one can object. Lord Judge likened it to a “befogged umbrella … keeping the rain off and keeping the fog in my head”.  The whole discussion in his view last night had been political, “which was a pity”.

As has often been pointed out – and Lord Judge reminded us of this – the Convention was written for a concentration camp Europe. The common law, on the other hand, is very much a living instrument (to borrow a term used to justify Strasbourg mission creep), alive to the changing needs of human rights protection. Those who adhere to the common law are not stuck in the nineteenth century or even – in answer to Lord Lester’s intervention at the end of the debate – the nineteen fifties. Today’s courts are populated by judges from a broad political spectrum who look around the world for guidance.

The elephant in the middle of the room was of course the ECJ and the European Communities Act. As Dominic Grieve said, if we’re really worried about mission creep, it should be the EU we should be focussing on, not the ECHR:

I spent quite a lot of my time as Attorney General worrying about the expansion of the European Court of Justice’s jurisdiction, and this is a big issue – I dare say in terms of national sovereignty I think rather a bigger issue than anything which comes out of Strasbourg.

And it was pointed out that this expansion is made a great deal more worrying by the adoption of the EU Charter of Rights, a broad ranging instrument containing social and economic as well as civil rights which acts as a conduit through which the ECHR can be given the upper hand through the European Communities Act which binds us in a way that the HRA cannot do.

Comment

One might think that a discussion of ECJ expansionism was as good a place to start as any with a quibble about the usefulness or otherwise of the ECHR to our domestic law, but the proponents of continued adherence to the ECHR have come up with an intriguing argument to the contrary. If we don’t carry on with the ECHR, and do what Strasbourg tells us to do, the ECJ will use that as a pretext to hit us harder with their version of the ECHR. The fallacy underlying this view is obvious. The expansionism driving the EU institutions does not depend on our relationship with Strasbourg. It’s there anyway.

As with all breakouts of this debate, the content was largely political.  Carl Gardner has posted on the session and he may disagree with me since his view was that

This was a serious evening of legal and political discussion by and in front of lawyers of the highest rank.

But it seems to me that the strongly ideological approach meant that a number of serious questions were avoided and the ones that did arise were not properly addressed.  It is no longer a complete answer, in my view, just to say that this country has to be a knight in shining armour, and that we would set a bad example to less scrupulous countries by being the first to pull out of the Convention. Without the European Convention, said David Anderson, we would lose our “last imperial vehicle”.  Some might argue that this is a bit of an own goal – who gave us the authority to be the moral crusader of the world? The British Empire of course. And if it’s our “international status” we’re worried about, that is not going to be upheld or even revived by kowtowing to Strasbourg.

Here’s a link provided by Brick Court Chambers from which the recording can be downloaded (until 16thOctober). 

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5 comments


  1. Tim says:

    The idea that the signatories to the ECHR intended to be anything other than bound by the rulings of the ECtHR is absolutely ridiculous. As if it is just some sort of advisory or guidance body and not a proper court.

    Clever people come along and try to smuggle the subsidiarity principle into the debate and muddy the waters in all manner of ways, but they can’t bat away the point that I’ve just made.

  2. ObiterJ says:

    With great respect, I am not sure where this post is heading. Bit of sitting on the fence maybe? If I may, a few points – please feel free to shoot me down !

    1. The Conservative document said that it would put its Bill of Rights and Responsibilities to the Council of Europe and see if it agreed that it was adequate. If not, they would withdraw. We have not seen the draft Bill yet so we cannot be sure. The document issued a week ago might be seen as testing the waters in the UK.

    2. Howe QC is entitled to his beliefs but many (probably most) serious commentators disagree. Also, few citizens would really agree if (a) they knew enough about this subject and (b) actually thought about it properly instead of reading the Daily Mail etc.

    3. The Human Rights Act 1998 actually protects Parliamentary sovereignty. Parliament may legislate contrary to the convention but is asked to be honest about doing it – see, for example, section 19 (Statements of Compatibility). Of course that might bring us into conflict in the E Ct HR but it is for government to handle that on the international level.

    4. Parliament did not really think it was handing total primacy to the Court of Justice of the EU (formerly ECJ). Have we forgotten all the angst – not to mention massive costs – of Factortame litigation etc???

    5. Just precisely what does our “unwritten constitution” prevent if its fundamental rule is Parliamentary sovereignty? Answer is it prevents nothing. It either requires nor prevents prisoners being allowed to vote.

    6. Why should the ECHR be limited to prevention of concentration camp Europe? In the 21st century many threats to individual freedom emanate from government. Some of those threats did not exist when the ECHR was first drafted.

    7. Lord Judge (with respect) should go to specsavers and get rid of his rose tinted lenses which seem to look back on our common law as some halcyon pre-HRA98 days. Please tell me the exact cases which granted (a) right to life; (b) prevented torture etc – (we flogged people in prisons up to 1949); (c) actually guaranteed a fair trial; (d) offered a right to respect for family life etc. Basically, all we enjoyed at common law was freedom to do or enjoy that which the law did not prevent. No guarantees of rights or freedoms whatsoever!

    8. Are we to have some sort of common law judicial activism? I hope not. The common law is too uncertain a mechanism to achieve protection of rights since, first of all, it would have to recognise rights. The, it is necessary to wait for appropriate cases to come before the courts and that might take a long time – if ever.

    I hope we stick to the ECHR. This should be a key issue in the next general election but, of course, it may not be since most people are more bothered about their job, a roof over the heads, the NHS and things that matter to them on the everyday level.

  3. sjb says:

    “Martin Howe’s claim that the policy document accurately characterised the Vinter ruling was met with groans of disbelief and disapproval from the audience of lawyers.”[1]

    Because …?

    [1] http://www.headoflegal.com/2014/10/09/martin-howe-qc-tories-will-pull-out-of-the-echr-unless-strasbourg-okays-our-plan/

  4. Gavin Steele says:

    “Kowtowing to Strasbourg”? Rosalind, that sounds like petulance – what about PRINCIPLE? You may disagree with those incompetent judges in Strasbourg, but what about the noble vision of universal justice – Churchill’s vision, no less – that they, and the Convention system, stand for? Isn’t a common standard of justice for 47 nations – think of that, 820 million people living with the same set of rights! – something worth preserving, even if it means the occasional (hopefully temporary) compromise on quality?

    Alright, so the UK pulls out of the Convention, and at last there is “British law for Brits”. No more kowtowing – ha, take that, you incompentent foreigners! We, here in Britain, shall look after ourselves! But, put crudely, why should the “human rights” of Britons somehow be more precious than those of everyone else? When the jingoistic hurrahs in the Daily Mail have died away, the victims of that policy will not, on the whole, be Britons (though many a proudly gay officer serving in HM armed services or crusading newspaper editor might disagree). In the longer term, the true victims will be those millions of people who are not lucky enough to live in countries with the UK’s wise and sturdily independent judges – and who will no longer be protected when the Convention system starts to unravel.

    It concerns me that this aspect of the UK debate has been almost completely absent – including, by the sound of it, at Gray’s Inn Hall last night. It is not merely the UK’s integrity on the international stage, a rather abstract notion, that is at stake. It is also the very practical matter of the hundreds of rulings issuing from Strasbourg every month. These rulings protect the rights of millions of people just like us – but who happen to live in faraway countries. By pulling out of the Convention, the UK would effectively be throwing them to the dogs.

    As Churchill clearly understood, sometimes it’s up to the strong to carry the weak – for the good of all of us.

  5. Anne says:

    My Generation fought a full scale War to keep our very own Common Law Constitutional Documents-ALL OF THEM, rather than be dictated to by any foreigners, and most important of course, are the Magna Carta, and our own Declaration of Rights and our Bill of Rights. The people of this Country cannot accept the ECHR ever taking ANY place over our very own Common Law Constitution-for to destoy the Constitution is indeed and Act of Treason. Those latter acts are there for all time to protect our Constitution and although attempts were made in a previous Government to repeal the protective Acts that guard our Common Law Constitution-they cannot be repealed for they are indeed there to protect our Constitutional Documents FOR ‘ALL TIME COMING’.

    I am absolutely AGAINST the four remaining Magna Carta Documents being put together NEXT YEAR OR EVER. An easy target to get rid of ALL of them-ONE WAY OR ANOTHER.

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