Our panellists Dominic Grieve (right, no) and Martin Howe (left, yes)

Duel: Should we scrap the Human Rights Act?

Liberal nonsense or essential protection? Our panellists battle it out
December 10, 2014

The United Kingdom ratified the European Convention on Human Rights in 1953, and the Human Rights Act 1998 incorporated it into domestic law, saying that British courts must “take into account” the decisions made at Strasbourg. But UK governments have repeatedly come into conflict with those decisions—over the deportation of Abu Qatada, prisoners’ enfranchisement and the right of illegal immigrants to a family life in the face of deportation. Is it time to scrap the Human Rights Act and replace it with a British Bill of Rights?

Next year’s 800th anniversary of the Magna Carta reminds us that the UK has the longest and deepest culture of the protection of rights and respect for liberty of any country. This was born out of struggle and conflict but became so entrenched over the centuries that it became an unspoken and assumed right of British citizens to live under laws that preserved our liberties, with courts and judges who would put the law first and, unlike in many other countries, not be told what to do by government.

After the Second World War we played a full part in creating a European Convention on Human Rights, whose main purpose was to provide a benchmark of liberties for democratic societies and a bulwark against a slide back into totalitarianism. But sadly, in the 65 years since the convention was drafted, a militant and activist European Court of Human Rights at Strasbourg has transformed it out of all recognition. It has created many new doctrines that are not in the convention, or that are clearly contrary to its text and what the states who drafted it intended—for example, the claim that the convention confers a right on prisoners to vote.

In this country we respect the rule of law, and defying a court—even an international court—makes us uneasy. But what if the threat to the rule of law comes from the court itself, through the persistent failure of its judges to respect the convention which they were entrusted with applying?

The Human Rights Act of the last Labour government foolishly imported the decisions of this court into our own domestic law, saying that our courts must take into account its judgements. In wide areas—from the abuses of human rights law that prevent us from deporting terror suspects and criminals, through to the crazy application of European human rights rules to the operations of our armed forces in far-flung parts of the world—we have suffered from the malignant effects of this ill-judged piece of legislation.

This is why it is now time to scrap the Human Rights Act and to ensure that the rights and liberties of the convention are respected in accordance with the original intentions of its drafters; that those rights are treated as developments of our historic liberties instead of alien imports; and that they are ultimately interpreted by our own courts and parliament.

I share your pride in our country’s tradition of liberty, but I see the European Convention on Human Rights as entirely complementary to it. Furthermore, while its interpretation by the Strasbourg court may not be perfect—you cite prisoner voting as an example—I can think of no court that achieves a state of perfection. From my experience as Attorney General in the UK government, I do not recognise the “threat to the rule of law” that you claim the court poses. 

I have little doubt that we signed up to the convention to give the benefit of our liberties to other countries as rights. But the truth was that our liberties were often inaccessible to the wronged when violated, and their violation quite common. The convention and the Human Rights Act have created their own dynamic and provided a means of both identifying bad practice by public authorities, leading to their administrative rectification, and an accessible avenue of redress when this does not happen. The vast majority of these decisions have been positive and establish principles such as decriminalising homosexual acts or rejecting the retention of DNA databases of the innocent, which now meet with widespread approval.

You want to repeal the Act and replace it with a British Bill of Rights that contains the convention text. But our own courts should be capable of interpreting the convention properly and are no longer fettered to a Strasbourg interpretation if they disagree with it—they have already shown that “taking into account” European Court judgements as required by the Human Rights Act does not mean you must follow Strasbourg if you consider it has got it wrong—so introducing a Bill of Rights will make little difference unless the purpose is to remove our own court’s ability to interpret the convention properly in some circumstances. As the rights are supposed to be accessible without discrimination it makes a mockery of the rule of law and will create far more problems domestically than it solves.

Finally, by pulling us out of the convention, your proposals will wreck its operation in places where it does much good. You entirely ignore this impact, which will damage our international standing and undermine a central plank of our foreign policy to improve human rights abroad. This seems a very un-Conservative thing to do.

I fully agree that no court can achieve perfection. If we sign up to an international court, there are bound to be times when it will rule against us. We should not complain about that. But my criticism of the European Court of Human Rights is not that it has the inevitable imperfections of any court, but that it has abandoned its task of interpreting the rules laid down by agreement between the states who drafted the convention. Instead, it has set about creating new rules of its own invention. It repeatedly moves the goal posts in unexpected directions by changing its doctrines without warning or justification. For judges to take it upon themselves to create law rather than interpret it is an assault on democracy.

The UK, by and large, respects the principles of the convention and the judgements of the Strasbourg court. There are parts of Europe where these are persistently disregarded. Sadly, the court has largely failed in its basic mission of upholding human rights standards there, and has instead focussed its efforts on more and more detailed interference in the affairs of countries such as ours who do respect human rights.

The argument is often made that our continued submission to this court is necessary for the protection of human rights in other countries. But I’m afraid that I don’t buy the argument that Vladimir Putin will pay any greater respect to human rights because we in the UK continue to submit to the slings and arrows of this outrageous court.

Your complaint about the interpretation of the convention by the Strasbourg court is that it has been treated as a living instrument. But we do this with the interpretation of our own domestic statutes and the United States’s Supreme Court does it with the US constitution. Without this, societal shifts in attitudes on homosexuality and human trafficking as slavery, or even the availability of new science such as DNA, could not have been reflected in judgements. 

I also just don’t agree with you that the court has been acting in some capricious fashion, even if I agree that it should have more regard to the “margin of appreciation,” the leeway given to member states in how the convention is interpreted. That is what then-Secretary of State for Justice Kenneth Clarke and I strove to achieve in the Brighton Declaration reforms of 2012, under which all 47 members of the Council of Europe agreed to modify the way the court handles cases. The evidence of recent decisions upholding our domestic ban on political advertising and the controlled use of hearsay evidence in criminal trials suggests this reform process is working, helped by a greater willingness of our own national courts to challenge Strasbourg reasoning where they think it right.

I confess to some surprise at your suggestion that the court is interfering in the affairs of countries with high standards of human rights while failing in parts of Europe where those rights are persistently disregarded. Its caseload entirely suggests otherwise. It is routinely addressing serious violations from countries such as Russia, Turkey and Ukraine. It has no power to force implementation of its judgements save peer group pressure from fellow signatory states. Yet in the vast majority of cases judgements are eventually implemented. By way of contrast, in 2013, 99.9 per cent of claims brought against the UK were struck out as inadmissible.

You believe that leaving the convention will make no significant difference to human rights elsewhere. I disagree. In October, the government’s plan to scrap the Human Rights Act (a paper I believe you co-authored) was cited by the President of Kenya as a ground for defying the authority of the International Criminal Court, whose work the UK supports. Leaving will damage our national interest.

You refer to the way the Strasbourg court treats the convention as a “living instrument.” This makes my point. This is a euphemism for the court acting as a political body rather than a judicial body and bending the rules or making up new ones. This is quite different from the way we interpret our domestic statutes. Your comparison with the US Supreme Court is illuminating. That court should stand as a stark warning to us all about what happens when judges start deciding issues on political grounds, dressed up as legal reasoning. Democrat and Republican Presidents each nominate judges who are expected to favour their point of view.

I fully acknowledge the huge effort that you and Kenneth Clarke put into trying to achieve meaningful reform. Sadly, the need to achieve consensus among so many states, coupled with opposition from the court itself, led to the proposals being severely watered down.

As the country of the Magna Carta, the Habeas Corpus Act (1679), the Bill of Rights (1689) and common law, I fail to see why it is necessary for us to outsource final adjudication on our fundamental rights to a foreign court. Canada and New Zealand share our legal and historical traditions and both have adopted bills of rights without the need for an external court to supervise them. This is a perfectly workable and civilised model on which we should base our own arrangements.

I do not consider interpreting either the convention or a domestic statute to apply it to circumstances that were not contemplated when first enacted is for a court to act improperly. Our national courts do this quite often to further the purpose of a statute in the social world as it is now, rather than when the statute was passed. Look how “member of a family,” first used in 1920, is now held to include a same-sex partner. The convention simply could not credibly operate if it were tied to the social norms of the 1950s. 

I am glad you accept that some positive reform was achieved at Brighton. We would have achieved more, if there had not been anxiety that the UK was trying to undermine rather than improve its operation because of anti-Strasbourg political rhetoric. But the positive results are still clear and, I believe, will continue.

If our fundamental rights are to be the European Convention text set in a British Bill of Rights then I entirely agree that we could, if we choose, leave final adjudication to our own Supreme Court, although on the evidence the likely difference of outcome with the current situation would be minimal. But that is not your proposal, which intends to restrict our own courts’ interpretation of the convention in a way that risks serious injustice. I want to see us using our unique heritage of liberty to secure convention rights for ourselves and to help extend them beyond our shores. Despite imperfections, adherence to the European Court allows this. Your model does not.