Queen’s Speech

Lord Woolf Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Woolf (CB)]

My Lords, I have heard some excellent speeches today, particularly from the three new Members of this House who made their maiden speeches. I am also conscious that this is the first time that I have to consider the situation that arises from having a second Lord Chancellor who is not in this House and not a lawyer. From that point of view I welcome the fact that the new Lord Chancellor decided to invite further consultation on a matter of great importance to not only this country but all other truly democratic countries around the world—that is, the suggestion that we should take drastic action about the result of the remarkably successful achievement of the introduction into our domestic law of the European Convention on Human Rights.

That was achieved by the 1998 Act, with considerable success in practice. It was a huge step for this jurisdiction to take, because although we played a part in drafting the convention, it was also very much influenced by jurisdictions whose legal traditions were very different from our own. We always focus on the contribution we made to its drafting, but I am bound to say that if this discussion were taking place in France, they would be claiming equal credit and responsibility. That document was hugely influenced by not only a common law jurisdiction, but a jurisdiction different from ours—a civil tradition that was adopted around the globe, in the same way as ours had been. The provision was implemented by a short Act of Parliament, at a fairly late stage in its career compared with the situation on the continent, where many jurisdictions had been dealing with the convention directly, and we had to face up to the same problems as they had faced and dealt with very well.

One of the reasons why judges welcomed the Act when it came into force was the situation that existed in our legal system before that Act. In fact, we had two systems. Our citizens could be involved in litigation going before the European Court of Human Rights without those cases going through our courts at all, so their progress and outcome were not influenced by the contribution this jurisdiction’s judiciary could make. We did a very good job of absorbing that convention and getting the benefit it could provide: there was now one system whereby, before someone went to the European Court, they had to satisfy it that they had exhausted the domestic remedies through which our judges and lawyers could make a contribution.

The jurisprudence that came out of this country and out of the European Court show that both were benefiting from the process. Not all the decisions were ideal, and I, as a judge in this jurisdiction, could easily identify for the House certain ones in Europe that I thought were wrong. Equally, I was aware that, in its approach to the convention, this jurisdiction benefited considerably from the fact that, in dealing with human rights—fundamental rights of a global, rather than domestic, nature—different techniques were required. Here, I pray in aid what the noble and learned Lord, Lord Hope of Craighead, said in his admirable speech. He pointed out that since 1998, a great deal of water has flowed under the bridge and the process of consolidating the European convention and our own common law has gone hand in hand. One surprising thing about the European Court of Human Rights is that, in many ways, it is a common law court that approaches cases according to the facts, rather than the principle. It comes to a conclusion based on the facts and does not mind moving forward stage by stage, evolving the law in the way this jurisdiction does, which is one of the great strengths of the common law.

The fact that I am speaking so favourably about the European Court and the European convention does not mean that I am against the idea of a British Bill of Rights in principle. Like the noble and learned Lord, Lord Mackay of Clashfern, I can see nothing wrong in principle in having such a Bill. But if a British Bill of Rights is not currently necessary, and if I am right in saying that having two systems did not work, let us not go back on what we achieved through the 1998 Act unless there is very good reason to do so. I have been following as closely as I can the arguments in favour of a British Bill of Rights, which involve pointing out the shortcomings that are said to exist with the European Court’s judgments. I can only say that in my view, the case has not been made to justify taking the risks involved in starting again, when we have made so much progress since 1998.

That is why I very much welcome the wise decision that was taken to have further consultation. I listened to what the noble and learned Lord, Lord Falconer of Thoroton, said about what happened last Thursday in the other place, and I have read the relevant Hansard. I see no reason why this House should not think that, when it is said that consultation will take place, that means meaningful consultation, and that is what I urge. It could take many forms, but let us have meaningful consultation. If we do not, we will let down not only the citizens of this country but the citizens of the many countries that depend on our influence and that look to us when considering how to deal with the big issues we face today, many of which have at their heart the observance of the rule of law and the convention on human rights.