Tuesday, 21 June 2011

Bringing Rights Back Home, Policy Exchange

A YOB who spent all day on a roof lobbing bricks at cops was “rewarded” with a KFC takeaway.  Police gave him the meal because of his HUMAN RIGHTS as the suspected car thief staged his second rooftop siege in seven months.

Last night, furious locals blasted his soft treatment.

One, Leanne Roberts, 19, said: “It’s disgraceful. People are starving while he is served like a king.”

And John Swatton, 74, added: “If I was in charge I’d shoot him down with a rubber bullet.”

It's political correctness gone mad.  The above article appeared in the Sun newspaper on 7 June 2006.  Attacking alleged abuses of human rights legislation has become a staple of the right-wing press - the same press, incidentally, whose quintessentially British brand of muckraking is potentially threatened by the right to privacy enshrined in the Human Rights Act (HRA).  Not that blasting "human rights" is a purely journalistic concern.  A cynic might suggest that the police, in this and other cases, have eagerly taken to using human rights as an excuse for poor or unpopular operational decisions.


This is a report by Policy Exchange, the leading British conservative think tank.  Unusually for a product of the political right, it does not question the HRA itself so much as the European treaty on which it is based and the legal structures that surround it.  More generally, it deplores the way in which the ambit of human rights has progressively expanded ("rights contagion"), and favours placing contentious decisions concerning human rights in the hands of politicians (the "democratic option") rather than judges (the "judicial option").

The HRA had the effect of incorporating into British law the substantive provisions of the European Convention on Human Rights (ECHR), an international treaty which was drafted in 1950 and came into force in 1953.  The ECHR was a well-meaning attempt to set out certain fundamental rights in a world in which Nazism, fascism and communism were matters of recent memory and present concern.  The rights in question are absolutely uncontroversial, comprising the bog-standard freedoms enjoyed by citizens of every western democracy - freedom of speech, freedom of religion, the right to a fair trial and so on.

The ECHR was mostly drafted in London, with the Conservative politician Sir David Maxwell Fyfe (later Lord Kilmuir) playing a leading role in the process.  It operates under the auspices of an international organisation called the Council of Europe, and it is enforced by the European Court of Human Rights in Strasbourg (which was established in 1959).  It is important to remember that the Council of Europe has nothing to do with the European Union and the Strasbourg court has nothing to do with the EU's Court of Justice in Luxembourg (though even law students regularly get them confused).

In spite of its lapidary name and striking building, the European Court of Human Rights is not what you might call an august body.  It is heavily overworked.  It takes cases from 47 different states in and around Europe, and litigants can currently expect to wait 6 years for their case to be heard while the court decides what to do about the tens of thousands of lawsuits brought by Russians over human rights abuses in Chechnya.  Some of the judges are of questionable competence (how many top-notch human rights lawyers are there to choose from in San Marino?) or come from countries with a questionable legal tradition (Chechen or otherwise, would you want your case decided by a judge nominated by Vladimir Putin?).  One judge apparently didn't know what a legal precedent is.  There is a worrying tendency for judges to have links with their nominating states' governing parties, and some of them have problems understanding English and French, the court's two languages of business.  Some of these difficulties may be resolved in the Council of Europe's own "Interlaken Process" of reform that was initiated last year.

More worryingly, the court has a disturbing habit of taking sides in political arguments that should really be played out within the democratic institutions of the member states.  There is a doctrine (known as the "margin of appreciation") which urges the court to allow governments discretion in deciding how to apply the terms of the ECHR in their own national contexts, but the court is less than assiduous in observing this principle.  Most recently, its decision in Hirst v UK had the effect of requiring the British government to grant (some) prisoners the vote.  Many of us are opposed to denying the vote to all jailbirds, whatever their length of sentence and whatever their offence (even though many of them would probably vote Conservative), but you don't have to be an EDL skinhead to question whether British electoral law should be subject to amendment by Bosnian and Lithuanian jurists in the air-conditioned conference rooms of Alsace.  Another recent case that aroused media interest was ABC v Ireland, which challenged the Republic of Ireland's stringent abortion laws.  The majority of the court stopped short of requiring those laws to be repealed, but some of the judges wanted to go further.  Whatever one thinks about Irish abortion law, it is far from clear why it should be made or unmade by anyone but the Irish people.

Moving back to the HRA, what this piece of legislation effectively did was to give us the right to cite and enforce the ECHR in British courts without having to join the queue at Strasbourg behind the Russian war criminals.  The decision to enact the HRA was the result of a policy debate carried on the 90s that had identified incorporation of the ECHR into British law as a simple and effective means of making human rights legally enforceable in a system which had no existing written constitution or US-style bill of rights.  The HRA's provisions are fairly straightforward.  If a government body breaches the ECHR, it can be sued.  If government regulations breach the ECHR, they can be annulled.  It is more difficult to overturn a non-compliant Act of Parliament, but the HRA directs judges to interpret statutes broadly in order to circumvent any apparent conflicts.  Where there is an irreconcilable conflict between the ECHR and an Act of Parliament, the judges can issue a "declaration of incompatibility" which allows the government to amend the offending legislation using a special fast-track procedure.

The HRA has greatly increased the power of British judges, and, as the report says, "many observers have been struck by the speed and vigour with which the UK judiciary has used its new powers".  Vernon Bogdanor has said that British judges have proven more eager to overturn legislation than the US Supreme Court or the French Conseil Constitutionnel.  The courts have been issuing on average 2 or 3 declarations of incompatibility per year.


The report argues that we should consider withdrawing from the jurisdiction of the Strasbourg court.  It is sometimes said that we can't do this because, despite being a separate institution, the European Union is a signatory to the ECHR and requires states to adhere to it as a condition of membership.  In actual fact, there is no express requirement in EU law for existing member states (as distinct from new members) to adhere to the ECHR, though member states are required in broad terms to respect the ECHR's principles.

The report rightly distinguishes between accepting the ECHR - and, indeed, allowing it to be enforced in the British courts through the HRA - and accepting the jurisdiction of the Strasbourg court in any case that a busybody or malcontent with enough funding for a lawyer chooses to bring before it.  It wasn't until 1965 that British citizens were even given the right to petition the court, and Frenchmen had to wait until 1981 to do so.  Unfortunately, however, the ECHR treaty no longer allows states to say Yes to the ECHR and No thanks to the court.  The UK could withdraw from the ECHR altogether (while at the same time retaining the HRA in its domestic law), but no-one has done this since the fascist junta in Greece withdrew in the late 60s to avoid being thrown out.  It would look very bad for the nation with the longest unbroken tradition of liberal constitutional government in Europe to withdraw from a major international human rights treaty which it itself had taken the lead in drafting.  It would also encourage countries like Russia to abandon even the minimal respect that they pay to the ECHR at the moment.

Yet the report does have a point.  Few progressives would want to see the demise of the HRA, but the existing system of the ECHR and the Strasbourg court is in some respects difficult to defend.  The most striking thing about the report is its foreword, which was written by Lord Hoffmann of Chedworth, a former Lord of Appeal and a famously liberal judge.  In spite of his reputation, Hoffmann is sympathetic to the arguments in the report, and he has said similar things before in other forums.  In doing so, he has placed himself at odds with the other great liberal Law Lord of recent times, Lord Steyn, who thought that the ECHR and the Council of Europe had comparable status and importance to the EU.

More problematic is the thinly veiled nationalist and populist agenda that underlies the report's approach.  It affirms a deeply traditional and decidedly flattering view of the British constitution.  We may not have all the fancy things that Johnny Foreigner has, like a written constitution or a proportional voting system, but we do have parliamentary sovereignty and a strong tradition of individual freedom.  Lord Hailsham may have called the British system "elective dictatorship", but he should have known better: he had served as Lord Chancellor in the weak and inept 1970-74 Heath government that let civil war rage in Northern Ireland and was brought down by the trade unions.  It is deeply regrettable that "the current system provides for a British Supreme Court that is subsidiary to Strasbourg".  This is all part of a wider trend of "the progressive abandonment of sovereignty by the electors of nation states".

Yet the report's defence of parliamentary sovereignty is not without merit.  I am not personally a believer in this particular doctrine of British constitutional theology, but I do share the report's concern about a shift of power from Parliament to unelected judges.  Lord Hoffman himself notes in his foreword that "UK judges have reached decisions, sometimes with regret and sometimes with enthusiasm, which would have astonished those who agreed to our accession to the [ECHR] in 1950".  Judicial activism on the British bench has tended to move in a progressive direction over the last few years, but it can safely be assumed that this will not always be the case, as American liberals know to their cost.  The US Supreme Court which desegregated the schools and decided Miranda was the same body that is now poised to strike down Obamacare (and tried to do the same to the New Deal).  Justice Antonin Scalia warned liberal supporters of judicial activism in 2006: "Someday you're going to get a very conservative Supreme Court and you're going to regret what you've done".  In this country, the progressive academic lawyer Prof. Conor Gearty has made a similar point.

Anyone who is interested in law and the constitution should read this report.  It is well written and well researched, and it will inform and stimulate even where it does not convince.