European Convention on Human Rights

Debate between Lord Mayhew of Twysden and Baroness Northover

Thursday 19th May 2011 Lords Chamber

[Lord Mayhew of Twysden]

My Lords, I shall look forward to that intervention.

I begin by expressing my gratitude to the noble and learned Lord for giving us the opportunity to debate this topical and extremely important subject. Unfashionable though it may be, I remain glad that our country has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is not often recalled—I was very glad to hear the noble and learned Lord do so a few moments ago—that we did so by one of the first acts of Sir Winston Churchill’s second Administration. We were the first of the member states of the Council of Europe to do so.

Like many of your Lordships, I am old enough to recall, and to have shared in, the surge of international idealism that flowed from the full realisation of the horrors that had been experienced in the recently concluded world war, and which had been inflicted on human beings before and during it. Those horrors had been inflicted by tyrants upon victims in a Europe that had lacked the political will to formulate, let alone enforce, any statement of their basic rights as human individuals. On all sides the determination was “never again”. So uncontroversial was the new convention, that to the best of my knowledge its ratification was never debated in Parliament. Though we became one of 12, our particular participation as a country was, I believe, to offer oppressed people elsewhere in Europe and beyond a beacon of hope and faith. From it they took heart and strength.

More controversially, however, I am also glad, though more critically, that 60 years later we remain bound by the convention, and that the coalition Government have declared that we shall continue to be so bound. That is not to say that there is not an urgent need for reform. In 60 years there have evolved, in large part with the consent of the member states, very significant changes to structures and jurisdiction. Whereas initially there was no court but only a Commission and a Council of Ministers, now the Strasbourg Court is at the heart of the convention, and, it must be said, at the centre of its problems. There is, for example, the horrifying and absurd backlog of applications to the court. Perhaps predominantly, there is the popular conception, which some of the court’s decisions have allowed to develop, that its decisions are typically out of touch with reality and with what is sensible. It is very damaging, surely, that this development should have led an authority of the stature of the noble and learned Lord, Lord Hoffmann, the former Law Lord, to be reported as saying that

“human rights have become, like health and safety, a byword for foolish decisions by courts and administrators”.

He has written that,

“the Strasbourg court has taken upon itself an extraordinary power to micromanage the legal systems of the member states of the Council of Europe”.

The Justice Minister, on behalf of the Government, has endorsed—though more gently—the thrust of that criticism. I think that there is much of which complaint in a similar vein can be made in the development by the court of its own jurisprudence. But it has been unfair in the main. Here I very gladly follow what the noble and learned Lord has just said. It has been unfair to attach that criticism to our own judges, who are obliged under the Human Rights Act 1998 to “keep pace with” the jurisprudence of Strasbourg.

It is not therefore wholly apt—to put it mildly—merely to assert that human rights should be determined by Parliament, not by judges. Whatever the words employed by Parliament, it will always fall to the judges to interpret and apply them to each individual case that comes before them.

Nevertheless, something must be done, and it is easy to understand how impatience can give rise to the answer, “Have done with the convention and all its works. Renounce it and make a fresh start”.

I believe that such a course would be an act of almost wanton destruction. Just as the convention itself derived from international determination to remedy for individuals the absence of legal protection against tyrannical abuse, so its renunciation by this country, of all countries, would tragically undermine the valiant efforts of protestors everywhere to secure basic rights and freedoms for themselves. That would be hard to forgive.

The wiser course, surely, is that now adopted by the coalition Government: the appointment of the commission in March to investigate the creation of a UK Bill of Rights that incorporates and builds on our obligations under the ECHR, ensures that those rights continue to be enshrined in UK domestic law and protects and extends our liberties.

It has been our destiny to be, for oppressed millions, a beacon of hope and faith. We can and must remain true to that destiny.

[Baroness Northover]

I would remind noble Lords—and my noble and learned friend was admirably within time—that this is a time-limited debate. When the clock hits seven, noble Lords have completed their seven minutes. We also have a noble Lord who wishes to speak in the gap.