Brick Court Chambers Public Law Event 2014: Is it time for the common law to break free from Europe?
Last night's discussion at Gray's Inn Hall featured a panel with Dominic Grieve QC MP (formerly Attorney General), Lord Judge (formerly Lord Chief Justice), Bella Sankey (Policy Director, Liberty), Martin Howe QC (member of the Commission on a British Bill of Rights), David Anderson QC (Independent Reviewer of Terrorism Legislation), all chaired by Shaun Ley of the BBC.
The Conservative Party's proposal which sparked off the debate was that the UK will withdraw from the European Convention on Human Rights after the 2015 election unless the European Council of Ministers accepts our proposal that our own common law and statute fulfils the UK's international obligations.
Martin Howe, a QC most closely involved with this move, simply didn't understand why it has caused such a "furore". Other countries, like Canada and New Zealand, have statutes setting out human rights without having to belong to a regional system. What is so inadequate about the UK's protection of rights that it should be shackled to Strasbourg, particularly with that court's history of spending the past sixty years
inventing entirely new doctrines, not based on the wording of the Convention – in many respects contrary to its express wording
This is an intolerable situation, Howe believes, and it has to be resolved.
Lord Judge was concerned with the tendency to gloss over the hard nosed constitutional question of parliamentary sovereignty and the precise status of the Human Rights Act.
The issue of what is binding on us, and how anything binding is to be implemented has been fudged, fudged from the very start of the Human Rights Act.
Article 46 of the Convention obliges the signatory states to "undertake to abide by the final judgment of the Court in any case to which they are parties". But it nevertheless remains clear that the UK never gave Strasbourg the same authority as the European Court of Justice. The prisoner voting issue encapsulates the problem. Are we really saying that if Strasbourg insists that prisoners should have the vote, there must be a way of forcing our parliament to abrogate the current laws that prevent prisoners voting? We argue about treaty obligations, but we don't ask ourselves the question that Ireland and Germany have answered with their written constitutions, about how we should respond when Strasbourg asks us to do what our unwritten constitution prevents us from doing. This, it seems to Lord Judge, seems " a very strange constitutional arrangement."
If it is impossible to implement a Convention obligation, then we cannot and constitutionally speaking should not do it.
We need to present human rights to this controversy as specifically as possible, otherwise it will remain a political debate masquerading as a legal one. When we talk about "human rights" as a whole – motherhood and apple pie and all that – no one can object. Lord Judge likened it to a "befogged umbrella … keeping the rain off and keeping the fog in my head". The whole discussion in his view last night had been political, "which was a pity".
As has often been pointed out – and Lord Judge reminded us of this – the Convention was written for a concentration camp Europe. The common law, on the other hand, is very much a living instrument (to borrow a term used to justify Strasbourg mission creep), alive to the changing needs of human rights protection. Those who adhere to the common law are not stuck in the nineteenth century or even – in answer to Lord Lester's intervention at the end of the debate – the nineteen fifties. Today's courts are populated by judges from a broad political spectrum who look around the world for guidance.
The elephant in the middle of the room was of course the ECJ and the European Communities Act. As Dominic Grieve said, if we're really worried about mission creep, it should be the EU we should be focussing on, not the ECHR:
I spent quite a lot of my time as Attorney General worrying about the expansion of the European Court of Justice's jurisdiction, and this is a big issue – I dare say in terms of national sovereignty I think rather a bigger issue than anything which comes out of Strasbourg.
And it was pointed out that this expansion is made a great deal more worrying by the adoption of the EU Charter of Rights, a broad ranging instrument containing social and economic as well as civil rights which acts as a conduit through which the ECHR can be given the upper hand through the European Communities Act which binds us in a way that the HRA cannot do.
Comment
One might think that a discussion of ECJ expansionism was as good a place to start as any with a quibble about the usefulness or otherwise of the ECHR to our domestic law, but the proponents of continued adherence to the ECHR have come up with an intriguing argument to the contrary. If we don't carry on with the ECHR, and do what Strasbourg tells us to do, the ECJ will use that as a pretext to hit us harder with their version of the ECHR. The fallacy underlying this view is obvious. The expansionism driving the EU institutions does not depend on our relationship with Strasbourg. It's there anyway.
As with all breakouts of this debate, the content was largely political. Carl Gardner has posted on the session and he may disagree with me since his view was that
This was a serious evening of legal and political discussion by and in front of lawyers of the highest rank.
But it seems to me that the strongly ideological approach meant that a number of serious questions were avoided and the ones that did arise were not properly addressed. It is no longer a complete answer, in my view, just to say that this country has to be a knight in shining armour, and that we would set a bad example to less scrupulous countries by being the first to pull out of the Convention. Without the European Convention, said David Anderson, we would lose our "last imperial vehicle". Some might argue that this is a bit of an own goal – who gave us the authority to be the moral crusader of the world? The British Empire of course. And if it's our "international status" we're worried about, that is not going to be upheld or even revived by kowtowing to Strasbourg.
[Read and comment on the original blog post here]