European Convention on Human Rights: 75th Anniversary

Lord Neuberger of Abbotsbury Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Neuberger of Abbotsbury (CB)]

My Lords, I spent 21 years as a barrister and then five years as a judge, arguing and applying English law while the rights contained in the human rights convention were not part of our law. Then from 2001, shortly after the Human Rights Act came into force, I spent 16 years as a judge applying and developing our law so that it incorporated convention rights.

Across the UK legal system, whether in civil law, public law, criminal law or family law, the Human Rights Act introduced important new rights such as the right to privacy and family life. It reinvigorated many previously stultified rights, such as freedom from detention. It re-emphasised the importance of vital rights, such as freedom of expression, and it increased the rights of all citizens against excesses of the state—a particularly important feature at a time of ever-increasing regulation.

I am no starry-eyed human rights groupie. As a senior judge, I tried to ensure that the new human rights jurisprudence did not cause the common law, of which this country should be so proud, to wither away. Rather, I tried to ensure—and I hope that, together with my colleagues, I succeeded in ensuring—that judges developed the common law so that it incorporated and benefited from the principles of the convention.

Of course, human rights law can occasionally lead to results with which many people will disagree, but the application of established law in any field can result in unpopular decisions, and that is a particular risk with a law that paints on such a broad canvas. Many decisions that are unpopular in this connection are concerned with asylum, but this country’s international duties with regard to asylum seekers are controlled as much by United Nations treaties as they are by the convention. There is a real danger that the public get a warped view of human rights, with the media focusing on cases that can be portrayed as leading to surprising results. Many of those cases are inaccurately or very one-sidedly reported. Although a number are not unfairly or inaccurately reported, they should be contrasted with the many unreported decisions where human rights have enabled or assisted a judge to get a fair answer that otherwise he or she may not or could not have done.

In the number of cases where the result seems rather odd, I am sometimes rather surprised that the Government or the relevant public body have not chosen to appeal. Judges do not always get things right, and appeal courts are there to deal with that, but too often there are no appeals when there should be.

Forty-six countries have signed up to the convention. It is a civilised force in an increasingly unstable world. Because its decisions apply over so many countries, the Strasbourg court judges generally appreciate that they have to tread carefully when laying down the law. They have developed the concept of a margin of appreciation to enable individual countries to make their own rules in some sensitive areas, such as assisted suicide. In my experience and knowledge, the Strasbourg judges have been prepared to reconsider and go back on decisions when a UK court has given judgment explaining why it thinks a particular Strasbourg court decision may be inappropriate for the UK.

This country is almost unique in the world in having no coherent overarching constitutional document. Because of that, the Human Rights Act has a particularly important role in protecting individual freedoms and liberties. It has been cleverly drafted so as to give human rights a special status in our constitution without overriding the supremacy of Parliament. We should be valuing it, not trashing it.