It’s always worth listening to Michael Howard’s views on constitutional and legal matters – he was one of the first Conservatives to speak about “repatriating” policies from the EU as I recall, an idea that was considered extreme at the time (and by some now of course) but which has since become Tory orthodoxy. Whether you agree with him or not, his ideas are coherent and tend to be based on a realistic understanding of the law rather than the eccentric views taken by the wilder Eurosceptic fringe. So I read with interest his post on the Blue Blog about replacing the Human Rights Act with a “British Bill of Rights”. This inchoate policy may be part of a new government’s programme next year, so it’s about time the idea was fleshed out by someone.
Howard doesn’t achieve that; nowhere does he suggest how such a Bill could achieve what he wants, which is a reduction in the power of judges as against the executive, at least as far as interpreting the ECHR is concerned. It seems to me what the Tories probably need to do, if they want that, is to repeal section 4 of the Human Rights Act and to amend section 3 so as to make it a weaker interpretative tool. That would water down the Human Rights Act to a fair degree, and restore us to something more like the pre-2000 position in which you had to go to Strasbourg if you wanted to challenge on human rights grounds anything Parliament had legislated for.
But Howard does put his finger on what the real issue is lying behind the whole debate about human rights in the UK: the arguably interventionist approach of the European Court of Human Rights. I’m a supporter of the Human Rights Act and of the ECHR, and I think the ECtHR is a good thing, too. I agree with a lot of what it does and much of its fundamental approach – I think it’s right to interpret the ECHR as a “living instrument” for instance, rather than seeing its application as limited by what the original framers had in mind in 1950. And I think it’s excellent that it operates by majority vote, with clear alternative judgments provided when judges dissent from the majority or even when they agree with the outcome but on different reasoning.
But there are occasions when the ECtHR seems too ready to correct national policies; the examples I have in mind are Hirst, the case about prisoners’ voting right, and S and Marper about the retention of DNA. I think both judgments were wrong (and not just because I disagree with the outcomes in policy terms: I’m content with the idea that prisoners should be able to vote) and I don’t blame the government for taking its time in complying with them.
No individual country can change the culture of the ECtHR on its own of course or override its rulings – all it can do ultimately is defy the court and try to succeed in argument in a later case. Not something anyone wants who is concerned about the rule of law. But I agree with Michael Howard that more caution from the court would be welcome, and I think he’s right that that is the goal any Conservative government should focus on if it’s serious about this subject. All politicians can do is try to influence the court with their speeches – but there’s nothing wrong with them trying to do so, and I hope the Strasbourg judges are listening.
What Michael Howard says will remind many people of Lord Hoffmann’s speech earlier this year on the same subject, and my reaction now is much like my reaction to Lord Hoffmann then.
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