Human Rights and Civil Liberties

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, there is a dangerous tendency on the part of lawyers to talk about their own cases. Many years ago, the last Lord Chancellor of Ireland published the first of what was expected to be a two-volume set of memoirs. After the first volume appeared, there was an unaccountable delay but one of his colleagues discovered the explanation. He said, “I am told that the compositor has run out of capital ‘I’s.”.

In the general debate last week on the implications of the proposed constitutional changes, I touched on a number of the issues raised today by my noble and learned friend Lord Carswell. Rather than return to those matters, I thought it might help bring some of the issues alive if, instead, I was allowed to mention just one or two of the innumerable Strasbourg cases in which I have been involved in one form or another over the last 35 years. In the late 1970s and early 1980s, as Treasury counsel I used regularly to go to Strasbourg and there lose most of the Government’s cases. My overall record was, I think, played 12, won one, drew one and lost 10, which was not such a bad record in those days. Mostly the cases were about disadvantaged minorities, prisoners, immigrants, mental health patients and so forth. In those long-ago days, despite our nation’s proud tradition of liberty, tolerance and democracy, majority rule can now be seen to have accorded scant sympathy towards those unpopular interests.

Indeed, there were occasions when the Government were quite happy to lose their cases. Take prisoner rights: in those days the Home Office, to its credit, was keen to liberalise prison practices, but the Prison Officers’ Association was a militant union that was fiercely resistant to change. The result was a series of prison cases under the convention, all of which the Government loyally contested but comprehensively lost. So they became able, armed with Strasbourg’s adverse rulings, to force the union’s hand into accepting the changes required. For example, no longer were prison governors able to read all a prisoner’s correspondence, in and out, including his letters to his lawyers. The noble Lord, Lord Lester, will remember these cases; I rather suspect that we might have been against each other in some of them.

Another case that, rightly, we lost, was Malone, where the United Kingdom’s long-standing practice of telephone tapping—which in those days was authorised just by the Home Secretary’s warrant, with no legislative backing whatever—was struck down. That led to the Interception of Communications Act 1985. There was then a series of further adverse Strasbourg rulings and a succession of further legislation here to regulate our intelligence agencies and to control surveillance and the invasion of property and privacy rights, culminating in RIPA 2000, which is now again under review.

Later, but still before the 1998 Human Rights Act “brought rights home”, came cases such as ex parte Smith—the so-called “gays in the military” case—which the noble Lord, Lord Cashman, touched on earlier, and which I heard in the Divisional Court in 1995. Mr David Pannick QC, as he then was, to my mind comprehensively won the argument for the complainants, but the common law of England at that time made it impossible to find in their favour—a decision that was then reluctantly upheld by the late, much-missed Lord Bingham, Master of the Rolls, in the Court of Appeal. But I expressly stated in my judgment:

“I for my part strongly suspect that so far as this country’s international obligations are concerned, the days of this policy are numbered”.

So, of course, it proved to be, but it needed the convention to achieve it. In 1999, in the same case, Smith and Grady v United Kingdom, Strasbourg unanimously found us to be in violation of Articles 8 and 13, the Wednesbury irrationality test here proving too high a threshold for domestic courts to be able to adjudicate properly on the sensitive questions of necessity and proportionality arising under Article 8(2).

Doubtless, when we first signed up to the convention it simply never occurred to us—certainly not to military chiefs, who wrote a lot of fierce letters to me—that eventually we would be required by the Strasbourg court’s developing case law to allow homosexuals to serve in the Armed Forces. But do we really want, on that account, to take a backward step to where we were before the Human Rights Act brought rights home? So, too, in the case of life sentences for murder: before the Human Rights Act, under primary legislation it was solely for the Home Secretary to decide whether and when such prisoners should be released. However, Strasbourg held that it was for judges to decide the appropriate tariff term and, later, that it was for the Parole Board to decide after this term when the prisoner could safely be released.

I turn briefly to one or two cases which were decided here after the Human Rights Act came into force but which, on subsequently being taken by disappointed applicants to Strasbourg, were there decided against the United Kingdom. Take the case of S and Marper about the retention of DNA samples and fingerprints. In 2004, the Appellate Committee of this House held unanimously that it was perfectly lawful to hold these samples indefinitely in the interests of solving future crimes, irrespective of whether those who had provided them were later convicted or acquitted. Strasbourg held that approach to be unlawfully indiscriminate and eventually, of course, we legislated to require the destruction of such samples after a given period, certainly in the case of those acquitted. I confess to remaining unrepentant about our original decision in that case, as, too, about the decisions we took in the appeal committee here regarding, for example, stop-and-search powers in the case of Gillan and control orders in the case of AF(No.3), where, again, Strasbourg subsequently disagreed with us.

However, I recognise that many people, not just extreme libertarians, preferred Strasbourg’s judgments on these issues to ours. Certainly, I remain unpersuaded by the Government’s case for repealing the Human Rights Act and substituting for it a more restrictive domestic Bill. Rather, I remain convinced that there is altogether more to gain by loyally submitting to this supranational court in the wider interests of all who are within the Council of Europe countries than by defying its rulings, as, alas, we continue to do on prisoner rights, let alone by withdrawing from our basic commitment to the convention.

I agree that our courts should be careful not to gold-plate convention rights—not, that is, stray beyond the limits of those rights as already clearly established by Strasbourg. But I believe that we should continue faithfully to give effect to convention rights in so far as they have now been clearly and authoritatively established.

I have, I fear, now run out not only of capital “I”s but also of time. I can only crave the House’s indulgence for my self-indulgence.