The Lord Chancellor, Chris Grayling, and the Home Secretary, Theresa May, are leading the Conservative Party towards a policy of repeal of the Human Rights Act and withdrawal from the European Convention on Human Rights. The policy is popular within the Conservative Party for four reasons, all of them bad.
First, even those who should know better lazily assume that the convention and its associated Court of Human Rights (ECtHR) are something to do with the EU. They are not: with the exception of the barmy dictatorship of Belarus, every country west of the Urals is a member.
Second, the ECtHR regularly makes unpopular decisions. So it does, but so too does every other court that has ever existed.
Third, human rights law is perceived as providing a gravy train for smug left-wing lawyers. This was Mr Grayling’s line in a Daily Mail interview last month. It is a gross exaggeration and even if it were true it would be a very bad reason. Lawyers are always unpopular: the best ones usually become rich, very often smug and surprisingly often left-wing. But they are essential for any functioning legal system.
Fourth, the convention is seen as an infringement of British sovereignty, by giving foreign judges power over us. That is the most substantial objection, but it too is ill-founded.
Unfortunately the salmagundi of courts, conventions and acronyms befuddles clear thinking on the subject. The European Court of Human Rights decides cases brought under the European Convention on Human Rights (ECHR). The European Court of Justice (ECJ) decides entirely different points about EU law, although just to add to the confusion the European Union is shortly to accede to the European Convention in its own right, and the ECJ is increasingly showing an interest in human rights law.
The ECtHR is not like an ordinary court. You can only bring a case there once all domestic remedies are exhausted. Contrary to popular opinion, (unlike the ECJ) it cannot overrule our own courts or even declare what our law is. It can award (usually very modest) damages, but its main power is to declare that a country is in breach of its convention obligations. Conservatives are right to be jealous of the sovereignty of parliament, but agreement to abide by decisions of the ECtHR does not compromise such sovereignty in any way. Conservatives have no objection to the British government complying with international treaties and the convention no more infringes our sovereignty than does our agreement to other international treaties, such as the World Trade Organisation. We could do what Mr Putin does and refuse to comply with the court’s rulings, although Conservatives usually believe that if Her Majesty gives her word she should keep it.
The Convention is to a substantial degree a Conservative document. It was largely drafted by David Maxwell Fyfe, subsequently a Tory Home Secretary and Lord Chancellor, and ratified in 1953 by Sir Winston Churchill’s government. Conservatives at the time were happy to endorse it, not least because, despite a healthy scepticism towards grand constitutional documents and political theories, they were even more wary of untrammelled democracy. As Churchill himself put it, in the different context of a debate on the 1947 Parliament Bill:
“No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time . . . Democracy . . . does not mean, ‘We have got our majority, never mind how, and we have our lease of office for five years, so what are you going to do about it?’ That is not democracy, that is only small party patter . . . Of course, there must be proper executive power to any government, but our British, our English idea . . . has always been a system of balanced rights and divided authority, with many other persons and organised bodies having to be considered besides the government of the day . . .”
Nearly 30 years later Lord Hailsham, that wheezy, rabble-rousing favourite of many a Conservative conference, warned of the danger of democracy producing an “elective dictatorship”. He saw a need to rebalance rights in favour of the individual. He advocated a written constitution. The Human Rights Act is a far less grandiose and, dare one say it, more Conservative solution, that enables British, not European, judges to uphold rights to which no civilised person could object: fair trial, respect for private life, freedom of religion and so on. Of course, these rights often conflict: so we need judges to adjudicate the disputes that arise. Better judicial decisions than executive fiat.
Some Conservatives have suggested that the Convention and the Human Rights Act might be replaced by a “British Bill of Rights”. It is a seductive prospect but profoundly unwise. It would do nothing to enhance British sovereignty, which is under threat from the EU, not the ECHR. Withdrawal would be the easy part. A “British Bill of Rights” would require the writing of yet another lofty-sounding constitutional document of the sort that Conservatives instinctively distrust, and doing so amidst fierce controversy. Agreement on its contents would prove as elusive as agreement on the reform of the House of Lords. In short, it wouldn’t happen and we would be left with a stronger executive and a weaker judiciary.
Mr Grayling is also trying to making judicial review of government actions harder. His plain object is to increase the power of the government over individuals and minorities. That would be an understandable aim for a socialist Minister of Justice. It should not be the aim of a Conservative Lord Chancellor.