European Convention on Human Rights: 75th Anniversary

Lord Wolfson of Tredegar Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a pleasure to speak for these Benches in this debate procured by the noble Lord, Lord Alton, whose work in the field of human rights needs no introduction. In fact, I remember that when I grew up in Liverpool—I do not know whether, in the eyes of the noble Baroness, Lady Ludford, that now makes me a human rights lawyer—the noble Lord, Lord Alton, was campaigning for the rights of Jews and Christians in the USSR to practise their religion. Therefore, I am especially grateful to him for today’s debate, in which we have had the privilege of hearing a number of very fine speeches, some of which have relied on the undoubted human right to push the boundaries of the advisory time limits.

Today’s debate is about not human rights per se but the European Convention on Human Rights, and the two are not the same. To make the obvious point, we had human rights in this country before we signed the European Convention on Human Rights, and many countries in this world that are not signatories to that convention still have and champion human rights. But the European Convention on Human Rights has a long history, and we played a central role in its inception. We were one of the original signatories and, as your Lordships have heard, we helped to draft it.

In 1951 two important things happened in the field of human rights in this country. First, we as a state signed the European Convention on Human Rights and, secondly, the noble Lord, Lord Alton, was born. We were one of the first states to ratify the convention, and since 1965 we have also accepted the jurisdiction of the Strasbourg court—the European Court of Human Rights. I am proud of our role in building the more just future for Europe from which we all benefit today.

I have mentioned the dates because they are important for context and background. When the ECHR was being drafted, Europe was still recovering from the horrors and destruction of the Second World War. It was only two years after the Nuremberg trials that in 1948 the United Nations promulgated its Universal Declaration of Human Rights, from which the ECHR’s founding principles flowed. I therefore suggest that it is appropriate that on the annunciator right now we have both the anniversary of the ECHR and the Holocaust Memorial Bill.

I want to move from the history to the ECHR today. I agree with a lot of what my noble friend Lord Lilley—who explained to me why he had to leave—said about the history. There is sometimes a pretence about the history—it is not all as people say it was—but let me move to today’s position.

There can be no doubt, as the noble and learned Lord, Lord Neuberger of Abbotsbury, explained, that the ECHR has led to legal advances. It has enabled judges to make innovative and expansive rulings in the fields of sexual equality, privacy and personal autonomy, to pick just a few topics. But we also have to accept that the approach of the ECHR is to entrust such lawmaking to a court—the Strasbourg court—that is accountable to no one. And while that might be good if you prefer its decisions to those that Governments might otherwise have made, it creates an obvious conflict between parliamentary democracy and an unelected court, especially when that court has gone on to adopt what I suggest to be a very expansive interpretation of the convention, as my noble friend Lord Murray of Blidworth explained.

Those conflicts range far and wide, and well beyond the scope of this speech, but you can get a sense of the issue from an analysis of 25 leading cases from that court, analysed by Professor Richard Ekins and others in an illuminating paper published by Policy Exchange. It is important to appreciate that it is not a bug; it is a feature. The lack of accountability of the European Court of Human Rights was precisely what made it appealing to those who set it up in the aftermath of fascism and Nazism. They saw the court as providing a check on elected Governments who might otherwise abuse their power. I understand that desire and I share it to an extent, but there are limits, and I wonder whether last year’s decision of the court in the Swiss climate change case has shown that we have reached those limits and perhaps gone beyond them.

Let me explain why. In 2021 the Swiss electorate rejected in a referendum an Act of the Swiss Parliament that called for a 30% reduction in emissions from 1990 levels by 2030. That Act, rejected by the electorate, was then replaced by an Act that provided for a staged reduction by 2050. That more moderate Act was approved by the Swiss people in a referendum. There is nothing in the convention about public health and certainly no mention of climate change, but that did not stand in the way of the Strasbourg court, which held that the Article 8 right to private and family life required Governments to take what it called effective measures to combat climate change, and those measures had to be consistent with the views of the UN Intergovernmental Panel on Climate Change.

That of course is the answer to the oft-made challenge, first made today by the noble Baroness, Lady Kennedy of The Shaws: “Which rights don’t you like?”. I like them all as drafted, but not as interpreted expansively.

The court held in that case that Swiss law was inconsistent with the convention. What about the fact that the Swiss people and their parliament had twice had a say in referenda? The court said that

“democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law”.

I give way to no one when it comes to the rule of law, but the rule of law does not require judges to have a roving commission over whole areas of contested and contestable national public policy in complete disregard of the expressed wishes of both parliaments and the people. As our judges on the court have been mentioned, I should add that the UK judge on the court wrote a powerful and principled dissent to this decision that repays careful reading.

The question is not whether the decision is right or wrong on the facts. It is not about whether climate change is real—it is—or whether we should take it seriously; we should. It is about whether and how we make laws on such issues in a democracy. As my noble friend Lord Sandhurst pointed out, in cases where you have contested issues of public policy and you have to balance a lot of factors, the effect of the court’s decision is that these arrangements are arrogated only to the court. Not only must the Swiss change their statute but it seems that they must also take steps to ensure that the changed statute is not itself rejected in a referendum by voters. To pick up the point made by the noble Baroness, Lady Ludford, this does not centralise power in the Executive; it centralises power in a court—contrary to the expressed wishes, in that case, of both the parliament and the people. Nor, I suggest, is it consistent with the rule of law. Some of the principles of the rule of law are that it must be stable, clear, publicly accessible and not retrospective. The decision of the Strasbourg court in that case is none of those things. As the UK judge said in his dissent, his

“disagreement is of a more fundamental nature and … goes to the very heart of the role of the Court within the Convention system”.

He ended,

“I fear that in this judgment the majority has gone beyond what it is legitimate and permissible for this Court to do and, unfortunately, in doing so, may well have achieved exactly the opposite effect to what was intended”.

Those of us who have concerns about the approach of the Strasbourg court have those concerns because we believe in human rights, not because we have concerns about human rights.

Our party has made a powerful and lasting contribution to law and justice in Europe and beyond. We remain committed to those values of law and justice, but we need to recognise that the Europe that gave birth to the convention is a Europe of the past. We need new international or improved agreements—as the noble Lord, Lord Carter, identified—that are fit for the present challenges we face and appropriate for those of the future.

I know that over the past couple of years we had long and heated debates in this House on immigration policy. The fact is that over the past years our ability to manage immigration has been hindered by interpretations of international laws, including the ECHR, which are a long way from the intentions of the states when they signed up to those treaties and conventions. I may not be the only one who has had a little wry smile over the past months at hearing echoes of what I used to say from that Dispatch Box repeated in press summaries from No. 10. Things look different when you are in government, as I think the party opposite is now finding. I accept that press reporting of judgments is often exaggerated and sometimes plain wrong, but those who deny that there is a problem at all are also wrong.

That is why we tabled an amendment in the other place to the Border Security, Asylum and Immigration Bill that would disapply the Human Rights Act from immigration matters. It is ultimately important that Parliament and Ministers have effective control over our borders.

I will end on a note where we all agree. In a world where the threat of totalitarianism remains, we must not disavow our moral duty to promote justice. That principled stand is entirely compatible with work, perhaps across the House, to ensure that our international agreements remain appropriate for the challenges of today and the future. I again congratulate the noble Lord, Lord Alton, on initiating this debate and wish him many more years of fighting, in good health, for the causes close to his heart, both in this House and outside it.