Just do it: responding to the human rights debate

Three major figures in the higher judiciary – Laws, Sumption and Judge – have all within a few days criticised the structure of human rights protection in the UK. Michael Howard, onetime Tory leader, left the latest – a speech by Lord Judge last night audibly saying that his attack on the European Court of Human Rights was ‘music to his ears’. We should be in no doubt: for defenders of the Human Rights Act and the European Convention on Human Rights, this is a serious moment. We cannot sit on our hands and hope that the storm will pass.

To begin with, we have to recognise the degree of truth in the argument that the role given to its European Court by the European Convention on Human Rights is genuinely problematic for traditional concepts of British Parliamentary Sovereignty. Article 46 of the Convention requires the UK to follow decisions of the court in cases to which it is a party. That unavoidably conflicts with the notion that our Parliament is supreme. Parliament has agreed to bow its head to the European court. Nostalgic traditionalists brought up on Diceyan notions of British democracy have a problem with that. So too do the British people who, and we should admit this, see their Parliament diminished by being told what to do by a group of foreign judges.

The most logical argument against that can leave one more than a little uneasy. Yes, we can argue that Parliament is still supreme because it has chosen to give power to Strasbourg and it can take it away. This formalistic reasoning is fine in theory but Sumption, Judge and Laws won’t buy it. The problem is the doctrine of the court that the convention is a ‘living document’ and is to be interpreted as of now rather than as of when it was agreed. It does not matter that the alternative, widely touted by conservatives in the US, is potty: under ‘originalist’ doctrine’ you are constrained for ever more to construe a document only from the perspective of when it was drafted even if that was centuries ago. There remains something in the argument that Parliament is stuck with things decided by judges and not by elected representatives.

So, how do we reconcile the undoubted benefits of judicial human rights protection with an absolutely correct concern with democracy? Well, let us begin by recognising the irrationality of just talking about human rights. Our wonderfully sovereign Parliament has surrendered power right, left and centre – in particularly over the economy not only to the European Union but also to the World Trade Organisation – and defence – both to the United States and NATO. UK banks are, for example, facing regulatory control and fines from both Europe and the United States: they are not just regulated by London. Our real problem is that the UK, for all the nostalgic visions of UKIP, is deeply woven – for better or worse – into an interdependent world.

And let us also recognise that all constitutions are messy. Talk of the separation of powers sounds clinical and clean. It is never like that in practice. Just look at the disaster that is the US. All constitutions balance and manage the irreconcilable: fudge and compromise are unavoidable. The challenge from the three judges is how we move forward. We can see how Michael Howard and David Cameron are thinking: let’s pull out of all things European. But is there an alternative that can be put forward by those who support continuing human rights protection but accept the difficulties?

Let’s be clear about what the problems are. They do not simply equate with the unpopular. Abu Qatada was a triumph for human rights: Jordan accepted that it had a duty to give him a free trial and he is about to face it. We exported European standards to a country that has been one of the US’s torturers of choice. Victory. Prisoners votes is much more difficult and, for my money, Hirst was wrongly decided. All courts make mistakes and this was one: the court overreached itself and, if this peripheral human rights issue, leads to the rolling back of human rights protection overall, it is a disaster. On the other hand, Pretty was the correct decision: I want rights on abortion and suicide decided by my national Parliament. And the court has done well to use the doctrine of a nation’s margin of appreciation to keep away from these issues. The lesson: a degree of humility and judicial deference would be prudent for the court – not on core issues like those in Abu Qatada but in the peripheral ones like prisoners votes.

So, three things should be offered to critics. Over the question of hearsay, the UK highest court had a dialogue with the European Court. It disagreed with an initial decision and won the day. So, let’s confirm that the UK court should ‘take note’ of European decisions but not be bound by them. That is the current wording of the Human Rights Act. So, let’s rejoice in is flexibility. Second, the European Court should bear more in mind its own doctrine of margin of appreciation. To put it bluntly, it should back off in two situations – where the issue is not core to human rights protection (and, yes, prisoners votes are different from a right to remain in a particular country) and where a national Parliament has expressed – through full legislation and not some improvised resolution – a considered view. Third, and most importantly, the prize of a consistently high level of human rights protection throughout Europe is pretty important. With goodwill, the issue of prisoners votes could be settled by minor concession. In the words of one of the economic giants that really rule our world and that should be addressed to a House of Commons up on its high horse: just do it.

 

 

 

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Roger Smith is an expert in domestic and international aspects of legal aid, human rights and access to justice.

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