Human Rights and Civil Liberties

Lord Carswell Excerpts

Thursday 2nd July 2015 Lords Chamber

[Lord Carswell (CB)]

My Lords, I have to confess to a degree of hesitation about entering into a debate on the topic of human rights with the noble Lord, Lord Lester of Herne Hill, whose knowledge of the subject is encyclopaedic and whose experience is unrivalled. However, I have a point to put before your Lordships and a suggestion to make, therefore I shall dare to be a Daniel.

Sir John Major said some time ago, echoing Disraeli, that:

“We have no need of a Bill of Rights, because we have freedom”.

There has been a great deal of discussion, both before your Lordships and elsewhere, about the Human Rights Act, the Convention for the Protection of Human Rights and Fundamental Freedoms—to give it its full and proper title—and the possibility of substituting for it a British Bill of Rights. My thesis is that there is a simple, straightforward and pragmatic way forward, which will avoid many of the difficulties, which I shall outline very briefly.

I start by saying straight out that I have no hesitation in saying that the convention was in itself an excellent idea. It was promoted by statesmen of great standing imbued with the desire to preserve liberty against the type of oppression about which and against which we had fought a long and testing war. It was a worthy attempt to encapsulate the basic standards for the relations between states and their citizens. It is worth while just sitting down and reading straight through Articles 1 to 18 of the convention, which confer the rights. They set out the rights and freedoms in terms which enshrine principles that should be fully acceptable to all civilised people.

In my view, the real trouble has arisen from the interpretation and application of the wording of those principles. I need not dwell on the well-publicised results, which have caused justifiable concerns to sensible citizens and have been well rehearsed in the press—somewhat noisily at times. So I shall not go on about cats or about people who choose to think that a monitoring tag is an explosive device designed to blow them up. Much of the problem stems from the approach of the European Court of Human Rights in Strasbourg. It has certain similarities to what is called the acquis communautaire of the other European institutions. There has been a ratcheting and one-way process, ever expanding the breadth of the meaning of the convention’s articles and, your Lordships may note, expanding with it, too, the power and reach of the court. The justification of this has been the interpretation of the convention, resorted to by the court, as a “living instrument”.

I have to say with a degree of regret that our domestic courts have in many cases showed themselves perhaps rather too keen to adopt a similar approach. That has been compounded by what I believe has been a mistaken process of following the Strasbourg decisions and pronouncements rather too literally. I have to hold my hand up and plead guilty to having been party to this when sitting in your Lordships’ Appellate Committee, but in my own defence I have to say that it would have been rather difficult to hold out against the very widespread acceptance by my colleagues of such a process.

The wording of the Human Rights Act requires our courts to “take account” of Strasbourg decisions. It was deliberately so framed and was very much the product of the ideas of the noble and learned Lord, Lord Irvine of Lairg, when Lord Chancellor in this House. The intention seems to have been pretty clear at the time of the passing of the Act: that some flexibility should be left in handling Strasbourg case law. I think it likely that those who framed the wording and those who approved it on many occasions were surprised by the way in which the courts applied it, but the courts were steeped in the long common-law tradition of being rigidly bound by precedent and they never got their mindset away from that.

In spite of the problems which have arisen—and there have been many—I would not support withdrawal from the convention. If it were sensibly applied, I would regard it as a perfectly acceptable series of principles. Of course, if we were to withdraw, that would, as the noble Lord, Lord Lester, and many others have pointed out, undoubtedly be used as a reproachful criticism—a stick with which to beat our Government and our country—as indicating a desire to depart from the standards of the convention. That might indeed be wholly unfair, given the long history in this jurisdiction of restraints on attempts to impose oppressive laws on our citizens, but it is a real risk and a further strong reason against withdrawal.

The same considerations do not apply to the Human Rights Act 1998. That introduced the requirement for domestic courts to follow Strasbourg decisions, in some fashion, and to set aside or declare incompatible legislation enacted by our Parliament. Frankly, I think that events have shown that we would now be better off without the provisions of the Act and I favour its repeal.

The noble and learned Lord, Lord Wallace of Tankerness, referred to a dog’s breakfast. I fear that what we have now takes something of both canine breakfast and dinner. Should we substitute a Bill of Rights for it? I say no, for two good reasons. Once a written instrument of this kind is produced it creates a vehicle for endless litigation and an industrious and ingenious search for loopholes. We have only to look at the terms of some of the suggested worthy and very well-meant attempts to draft a possible Bill to see that they are completely stuffed full of such possibilities for dispute.

My suggestion is simple: forget withdrawal from the convention and forget a British Bill of Rights—just repeal the Human Rights Act 1998 and leave it at that. We should then be back to where we were before 1998. That does not involve rejection of the principles of the convention, let alone withdrawal from it; though to listen to some criticisms of the present proposals one would think that simply repealing the Human Rights Act would immediately mean an abandonment of the convention—it means no such thing.

The courts would be able to pay as much attention to the Strasbourg decisions on the interpretation and application of the convention as they thought fit. From previous experience, I think that they would, in practice, examine those carefully in every case where the principle becomes an issue to see whether a contemplated decision accords with the Strasbourg jurisprudence. The current authority is obviously a useful guide if a point might be decided either way, but the courts would not necessarily have to follow it if they disagreed with it or if the clear terms of a domestic statute required them to reach a different conclusion. That would still leave it open, as before, and as now, for an aggrieved party to take his case to Strasbourg and seek a remedy there. There was a steady flow of such applications prior to the 1998 Act, some of which were successful, but it was not on such a scale that we could not as a country tolerate it. I suggest that it would be worth putting up with that again to gain a degree of freedom from the shackles of the Strasbourg decisions.

The continued existence of the right of appeal to Strasbourg should act as a brake on any temptation to impose excessively draconian legislation and influence courts not to fly in the face of clearly correct Strasbourg case law. Perhaps some decisions of our courts would continue to raise eyebrows and give rise to headlines—whatever the system, we will get decisions like that. But appeals and appropriate legislation should operate to correct it.

A tailpiece, if I may mention it in closing: some of your Lordships have referred to the importance in Northern Ireland of the Human Rights Act and the convention. I do not attempt to speak for any authority or people in Northern Ireland, but my view, based on 40 years of experience in the law before 1998, partly as a practitioner and partly as a judge, is that we did get along pretty well. I put that mild point before your Lordships.

I commend to your Lordships the course of action I have suggested.