With victory in the 2015 general election comes an opportunity for the Conservative government to implement its commitments on reform of our laws on human rights. David Cameron has put the responsibility for doing this into the hands of two of his most talented MPs — Michael Gove, Dominic Raab — and a top QC, Lord Faulks. They will need all their intellectual and diplomatic powers to steer ahead while avoiding the icebergs in their path.
On the positive side, there has been considerable progress since the ill-fated Commission on a Bill of Rights was effectively blocked in 2011-12 from giving consideration to the core issue of parliamentary sovereignty. The terms of debate have changed. Senior judges, current and recently retired, as well as academics have come to accept that judicial interpretations of broadly worded human rights conventions may lead to an undermining of the powers of democratically elected legislatures.
On the negative side, there is the fearsome complexity of the new legal system created not only by treaties signed by the UK with the Council of Europe but also with the European Union and the United Nations. The intended replacement of the Human Rights Act of 1998 with a British Bill of Rights will have relatively little effect unless several icebergs stemming from these international commitments are avoided.
First, as long as the UK remains signed up to the European Convention on Human Rights, anyone in the country may take a case directly to the European Court in Strasbourg and win damages against a UK government which refuses to implement its judgments.
Second, the Lisbon Treaty has brought into law the EU Charter of Fundamental Rights adjudicated by the Court of Justice of the European Union in Luxembourg. The opt-out from the Lisbon Treaty negotiated by the last Labour government has turned out to be fairly meaningless. The Luxembourg court may become a considerably greater threat to Westminster’s law-making authority than Strasbourg has ever been.
Third, there is the question of whether the UK could realistically remain within the jurisdiction of the Strasbourg court were it to regard its decisions merely as “advisory”, as set out in October 2014 by the then Justice Minister Chris Grayling. This would be contrary to the UK’s obligations under the European Convention on Human Rights. It is true that other countries ignore the court’s rulings in hundreds of cases, whereas only in exceptional cases, such as prisoner voting rights, has the UK been reluctant to comply. Dominic Raab has written that the UK could ignore the court without causing more than a “mild diplomatic prang”. The distinguished former judge Sir Stephen Sedley has spoken to the same effect.
A fourth issue is whether a UK exit from the jurisdiction of the Strasbourg court would have an undesirable impact on the rule of law in other members of the Council of Europe, such as Russia and Turkey. This “Russia argument” is constantly cited as part of the rhetoric against the Conservative party proposals. If Strasbourg decisions were to be advisory only for the UK, the same would apply to some of the more dubious regimes. Since such regimes frequently disregard Strasbourg judgments anyway, the strength of this argument is open to debate.
Apart from these points of substance, there are possible political pitfalls. Government proposals would be subject to defeat in the House of Lords and to rebellion, albeit limited, on Tory benches in the Commons. They could also conflict with the Good Friday Agreement in Northern Ireland and with legislation concerning devolution in Scotland. Any reform might therefore be applicable only in England and Wales.
So, how should Gove, Faulks and Raab proceed? In my opinion, they need to be determined on the fundamental constitutional issues but open to constructive engagement with the Council of Europe, the parent body of the European Court of Human Rights.
There are two “no compromise” issues. One of them is a commitment to human rights themselves. At a time when security problems and questions of asylum are likely to intensify, standards of justice cannot be abandoned. As a supporter of David Davis’s civil liberties campaign, as a former member of the Foreign Office’s legal team, and as a child of an immigrant impacted by the Holocaust, Raab is strongly placed to safeguard these standards, as for other reasons is Gove.
The other “no compromise” issue is on Parliamentary sovereignty. So far, the clashes between the wishes of MPs on policy issues and the Strasbourg judges have been few and there is a healthy dialogue between UK Supreme Court and Strasbourg judges. But a constitutional framework must be built to withstand future problems. Parliament cannot afford to hand over final authority to an international court. At some point, there will be a really fundamental divergence, as happened in the USA when the Supreme Court decided in 1857 that the Congress could not restrict slavery. This disastrous decision led to the Civil War.
I believe that the new government can and should be conciliatory in a number of ways which will leave these two basic commitments unaffected. It is unnecessary for the UK to regard Strasbourg decisions merely as “advisory” — that is, to be disregarded casually. The rules for national “parliamentary override” of Strasbourg decisions should be sufficiently stringent to ensure that they can be used only in exceptional circumstances and after full debate. The UK should negotiate with the parent body of the Strasbourg court, the Committee of Ministers of the Council of Europe, to strengthen the enforcement of Strasbourg judgments in cases where parliamentary override has not been invoked. Moreover, any negotiation should take place in a positive spirit with a will to succeed, though the possibility of the UK’s exit from the jurisdiction of the Strasbourg court must remain.
Then there is the matter of the Luxembourg court. The Labour government made clear to the House of Commons that the EU Charter of Fundamental Rights would not be legally enforceable but would be a statement of principles alone. If we have been tricked into signing up to the Charter as part of the Lisbon Treaty and have found since then that previous assurances have been ignored, that is a vital matter. The UK has two forms of recourse. One is to exercise our veto on the provision of the Lisbon Treaty that would allow the EU collectively to sign up to the jurisdiction of the Strasbourg court. The other is to ensure that the opt-out from the legal enforcement of the EU Charter of Fundamental Rights by the Luxembourg court is a non-negotiable part of talks with the EU prior to the referendum on UK membership.
Perhaps more important than any of these points is the need to foster an intellectual debate on constitutional issues relating to sovereignty and the rule of law. The rapidly growing power of international courts creates a wholly new situation.
So far, the arguments have too often taken the form of shouting matches and insults rather than reasoned exchanges. It is unhelpful to suggest that Britain will become a “pariah” state like Belarus if we fail invariably to follow the jurisdiction of Strasbourg judges (or, in future, Luxembourg judges). It is equally unhelpful to dismiss the Strasbourg judges, many of whose decisions have been careful and balanced. Still less is ignoring a vital debate about the respective roles of judges and legislators forwarded by dismissing the recent British president of the Strasbourg court as the son of a Serbian violinist. I am nevertheless very hopeful that the new ministerial team will be able to devise a careful set of proposals with its legal advisers in Whitehall and with senior judges.