European Convention on Human Rights

Lord Kirkhill Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Kirkhill]

My Lords, I join other noble Lords in congratulating the noble and learned Lord, Lord Irvine of Lairg, on securing this debate. Nowadays, when we discuss fundamental rights, we inevitably have to talk about the European Convention on Human Rights. This convention is by no means the only international instrument in the field of human rights, but it is certainly one of the most important.

Until the beginning of this century—that dates me a bit—I was for almost 14 years a member of the United Kingdom Parliamentary Assembly of the Council of Europe. For about four years within that period, I was chairman of the council’s committee on legal affairs and human rights. Therefore, I observed the functioning of the human rights convention and, to a certain extent, played a role in its implementation. We should continue to remind ourselves that the convention is based on the Atlantic Charter signed by Churchill and Roosevelt in the middle of the Second World War and the 1948 United Nations Universal Declaration of Human Rights. Yet, the history of human rights is much older than that—it goes back to the French Declaration of the Rights of Man, the Magna Carta and the Bill of Rights. This means that in many respects the convention has its roots in our own past. Those who pretend that the convention is entirely a continental matter, and has continental legal implication, are wrong in my view.

Half a century ago, the French, under de Gaulle, refused to accept the convention, arguing that it was “too Anglo-Saxon”. The truth is, however, that the convention is a well balanced product of the best of western European legal traditions, of which Britons, French and other Europeans may be equally proud. The convention was concluded in 1949, which means that it is now 60 years old. Since 1949, additional rights have been added and the mechanism of the convention has been modified and strengthened. There is now, of course, a permanent court sitting in Strasbourg, with the judges permanently resident in Strasbourg, which did not apply in days gone by.

Today there is only one country in Europe that is not a member of the Council of Europe and does not adhere to the European Convention on Human Rights—Belorussia. All the 47 other European countries adhere to the system. A large number of them were communist or fascist dictatorships only a few decades ago. Parliamentary democracy in some form, human rights and the rule of law did not exist in these countries until very recent times. Whereas in the United Kingdom the court of human rights may correct marginal imperfections, for the new democracies the court plays an essential role. I do not need to underline the importance of this if we want to prevent their sliding back into some form of dictatorship. It is mainly for this reason that the United Kingdom should do whatever it can to support the court of human rights and to strengthen it.

The court of human rights and the convention itself are often criticised in our Parliament and popular press. Sometimes this criticism is justified although, of course, not always. No man-made thing is perfect. The court is made up of human beings who, like all human beings, may not always be perfect in their decision-making.

One of the problems of this criticism is that it tends to oversimplify things and to disregard the nuances. However, the court hardly ever takes decisions in which it categorically states that this or that is right or wrong. Normally its decisions are couched in much more prudent formulae such as, “under these conditions”, “in this particular situation”, “in the absence of”, and so on. This was the case with the court’s decision on the voting rights of prisoners, which raised a storm of protest in this country. Yet most of the effects of the court’s decision could be removed were we to pass adequate legislation, as the noble Lord, Lord Ramsbotham, has just indicated. On the other hand, if we have serious objections to one or several provisions of the convention, it is not unlikely that other European states share those with us. The convention could be changed, and although this would admittedly be a long and very cumbersome process, it is possible. Indeed, Britain might envisage taking the initiative in such a case.

In international human rights Britain has always played a leading role. I believe that it could, and should, do so in the future as well. Too often in European co-operation our country takes a “wait and see” attitude, to discover later that it has to jump on a running train—a train which might have been better adapted to our needs and traditions if we had been on it from the beginning.