European Convention on Human Rights

Lord Wills Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Wills]

My Lords, I join others in thanking my noble and learned friend Lord Irvine for securing this important debate.

Memories fade—not all politicians have as good a memory as the noble and learned Lord, Lord Mayhew. He reminded us that the ECHR was inspired by Winston Churchill, was largely drafted by British lawyers and was seen after the horrors of totalitarian tyranny as a way of protecting the individual against the arbitrary power of the state. The Human Rights Act incorporates those protections into British law so that British citizens can seek them in British courts. Yet too often now, these rights are viewed as an irritant by politicians seeking easy headlines and by journalists who are eager to write them.

Human rights can challenge everyday assumptions in a modern democracy and, in interpreting legislation to protect fundamental individual rights, courts can sometimes reach judgments that upset majority opinion—and, of course, courts here and in Strasbourg can err. However, while the rule of law must command broad respect in society for it to be sustained, this should not come at the price of requiring majority support for every legal judgment. As the noble Lord, Lord Pannick, set out, this could leave powerless individuals and minorities defenceless. This has been forgotten today by those who oppose such protections for unpopular minorities and individuals and who dislike anything that emanates from Europe on the basic assumption that anything that comes from over there must be damaging here.

As my noble and learned friend Lord Irvine set out so cogently, such views are often based on a toxic stew of misinformation and misinterpretation. As my noble friend Lady Whitaker has reminded us, the Human Rights Act works well in protecting individuals against the arbitrary actions of the state—a mission that everyone ought to be able to sign up to.

The most recent myth—and it is a myth—is that the European Court of Human Rights dictates the interpretation of human rights instruments by British courts. It does not. As the noble Lord, Lord Faulks, has reminded us, Section 2 of the Human Rights Act requires British courts to take into account Strasbourg case law but no more than that—they are not bound by it. In taking such account when interpreting the Human Rights Act our courts also frequently rely on our common law and other sources of authority. There is a margin of appreciation to British courts to interpret the convention in accordance with British jurisprudence as well as European jurisprudence.

With great respect to the noble Lord, Lord Faulks—who is a most distinguished lawyer and, as is evident to your Lordships’ House, I am not—I understand that in a number of early cases—for example, in Alconbury and Anderson—even though British judges determined that they were bound by Strasbourg jurisprudence, they were careful to make clear the room for discretionary judgments. In Alconbury, Lord Slynn said:

“In the absence of some special circumstances, it seems to me that the court”—

this judgment was given in the House of Lords, as the Supreme Court then was—

“should follow any clear and constant jurisprudence of the European Court of Human Rights”.

In endorsing this in Anderson, Lord Bingham said that the House of Lords,

“will not without good reason depart from the principles laid down in a carefully considered judgement of the court”—

that is, the European court. I am not a lawyer, but the qualifications “in the absence of some special circumstances”, “any clear and constant jurisprudence”, “without good reason” and “carefully considered judgement” signal considerable freedom of action for the British judiciary. On more recent occasions this clearly seems to be the prevailing trend. In Animal Defenders, for example, UK judges have acted as if they are not bound by Strasbourg jurisdiction.

This is not an academic discussion. The Government have said that they want to bring in a new Bill of Rights and they have set up a commission including distinguished Members of your Lordships’ House to pave the way. There is nothing necessarily worrying about that. The previous Government launched a Green Paper—I was the Minister responsible for it—which discussed the possibility of a new Bill of Rights. However, for us, the purpose of that consultation was not to scrap the Human Rights Act but how best to build on it: how sufficient was it; did we need to go further; was there a case, for example, for entrenching further economic and social rights that we have so far taken for granted?

In contrast, the Conservative Party has said that it wants to scrap the Human Rights Act, although it would not withdraw from the European convention. However, if a Conservative Bill of Rights will still incorporate the ECHR then, whatever the detailed tweaking, the question must arise: why bother? It is hard to avoid the conclusion that the Conservative Party has fallen victim to the occupational disease of politicians—raising expectations in search of short-term political advantage, reckless of the fact that they are doomed to disappoint such expectations in the longer term.

Conservative talk of scrapping the Human Rights Act must give rise to expectations that human rights judgments that have provoked disquiet in sections of the media and the wider population will no longer occur. This is simply not true—not least because many of such cases have resulted not from judgments in British courts but from the European Court of Human Rights. Conservative policy would not prevent such judgments; it would simply force British citizens to go to Strasbourg to seek protections, once again exporting British rights to Europe.

It might be argued that if the Government replaced the Human Rights Act with a Bill of Rights that simply reworded it, it would not be anything other than a waste of precious legislative time but the damage would be only presentational. But is that really the case? If the Conservative Government tried to deincorporate the ECHR through scrapping the Human Rights Act and then reincorporate it in some other way, there is at least a real risk that the Strasbourg court, to which British citizens would still have recourse under Conservative policies, may well be less inclined to defer to rulings by British courts. In other words, any such legislation would be likely to restrict the margin of appreciation rather than extend it.

It is with relief that all of us who care about human rights see the presence of the Liberal party in the Government. Its members have been admirable advocates of the Human Rights Act. At Second Reading of the Human Rights Bill, the noble Lord, Lord Lester, who is a founding father of the Human Rights Act, called the Bill well designed and well drafted. I look forward to his speech later in the debate and to that of the Minister; they have been redoubtable defenders of the Human Rights Act.

There is an important debate to be had but it should not be about replacing the Human Rights Act. As the late Lord Bingham said:

“The rights protected by the Convention and the Act deserve to be protected because they are … the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being”.

The debate we now need to have is not about scrapping the Human Rights Act but about how to build on it.