A Conservative government will withdraw from the European Convention on Human Rights after the 2015 election, Martin Howe QC made clear yesterday evening, unless European countries agree their “British Bill of Rights” fulfils the UK’s international obligations.
The QC most closely associated with the Tory promise to repeal the Human Rights Act spelled the position out during a panel discussion at Gray’s Inn organised by barristers at Brick Court Chambers, in front of a distinguished legal audience including the Supreme Court Justice Lord Clarke and current and former Court of Appeal judges Sir John Laws, Sir Patrick Elias and Sir Henry Brooke. Also present were many eminent barristers and solicitors, including leading government lawyers who must remain nameless.
Many thanks to Brick Court Chambers for allowing me to publish their recording of the event.
Howe quibbled with the premise of a question put by Paul Bowen QC, who suggested the UK was likely to remain subject to the human rights Convention.
That is not a fact,
The policy is that either the Council of Europe accepts the proposals and agrees that they are in conformity with our obligations as members of the Council of Europe, or the United Kingdom will give notice that it will withdraw from the Convention
Asked later in what form he expected such an agreement to be delivered, Howe said
What would happen is we present, effectively, the Council of Ministers with a situation in which it was up to them to choose. If they’re not willing to agree that our arrangements are appropriate, then we would withdraw from the Convention.
His remarks struck a different tone from last week’s Conservative announcement, emphasising more strongly the real possibility of withdrawal.
The problem with the European Court was far more than just “mission creep”, he said.
we have a court at Strasbourg that has … interpretation is the wrong word … has spent 60 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, I believe, and it has to be resolved in a coherent way.
Both the former Attorney General Dominic Grieve and the government’s independent reviewer of terrorism legislation David Anderson QC disagreed with the policy, as did Bella Sankey, who spoke for the campaign group Liberty.
This is the first time we have said we will withdraw from the convention if the Council of Europe didn’t accept our terms of membership
and the terms of membership are that the judgments in future would only be advisory on the United Kingdom whilst they would remain binding in international law on everybody else – which I think one moment’s scrutiny must incline one to the view is impossible, because it would destroy the convention system in its entirety.
While Grieve himself was critical of the European Court, he stressed
All this in my view is a mistaken approach.
And the former Attorney General gave an insight into the legal advice he must have given to government. It’s ministers’ duty, he said, to observe international treaty obligations as far as they’re able
and that means we should not connive at trying to prevent the implementation of a treaty obligation, although it can mean, if it’s impossible to implement a treaty obligation – because Parliament won’t do it –that’s a different matter. If we don’t like a treaty, we should pull out of it, or we should try to renegotiate it. We should do a number of things; but we should not breach our international legal obligations, because there lies anarchy and chaos in the international order. It’s very simple and straightforward.
David Anderson QC was sharply critical of the Tory policy paper (which, the chairman Shaun Ley suggested, he’d brought for Martin Howe to autograph), in particular what it said about the recent Strasbourg “whole life orders” ruling – which he complained was “not true”:
If this document really was passed by “QC level lawyers” as I read in a press release, then they should be ashamed of themselves
he said, to applause. In contrast, Martin Howe’s claim that the policy document accurately characterised the Vinter ruling was met with groans of disbelief and disapproval from the audience of lawyers.
For Liberty, Bella Sankey was pessimistic about the UK’s future, under Tory policy:
It’s not clear that we would remain part of the Convention … if you take the paper at its word and then you, obviously, look at the response that we’ve already had from the Council of Europe, it would immediately bring about our exit … which would probably bring about our withdrawal from the Council of Europe, and perhaps even the EU while we’re at it.
The paper was “legal nonsense”, she said. And it would be counterproductive:
If we diminish rights that are protected in domestic law, it will only lead to more supervision from Strasbourg – the very thing that the Conservatives say they don’t want to happen … Being the first country to “deincorporate” the Convention is going to necessarily lead the court to take a stronger look at the cases that will be brought there. It will become once again a court of first instance; and the very sovereignty that the Conservatives say they want to return to the courts and to Parliament will be hugely lost.
Dominic Grieve pointed out the risk that EU law might fill any gap created by withdrawal from 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.
The ECJ had become more involved in justice and home affairs issue, he said, and
if in fact we have a situation where we are not observing Convention laws I think the risk to us is, it’s a green light to the ECJ in Luxembourg (if we’re still members of the EU) to start to expand their areas of competence into this sphere, which I don’t think is desirable. In fact I think it’s extremely undesirable.
Of course, he said
some people may welcome it. If people wish to have a mighty clash with the EU resulting in our departure, then this may be a mechanism which is precisely the casus belli that they wish to bring forward.
The retired Lord Chief Justice Lord Judge was careful to avoid expressing political views, and to distance himself from last week’s announcement. The timing of his recent article in Counsel magazine had, he said
nothing whatever to do with me.
Lord Judge was, though, critical of the Human Rights Act, in particular the way in which it requires British judges to take into account Strasbourg rulings:
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 …
he said; and
… this to me is a very strange constitutional arrangement.
He contrasted the human rights position with that under EU law:
At least in the in the context of the European Court of Justice, there is no fudge. Our law’s entirely clear: our courts are bound by the European Communities Act 1972, and the European Court of Justice can tell us what to do.
Later, in response to a question from Lord Lester QC he asked
Why don’t we have an Act of Parliament that says, as with the European Court of Justice, the decisions of the European Court of Human Rights in Strasbourg will be binding? If we have that, then there’s your answer; but we don’t. We have a muddled piece of legislation.
Bella Sankey disagreed, stressing the deliberate principle embodied in the Human Rights Act specifically protecting Parliament from imposition by the European Court of Human Rights.
The final strand of the discussion was a disagreement between Lord Judge and most of the rest of the panel about how far the common law could, if the UK withdrew from the Convention, provide an equivalent level of protection for human rights. For public lawyers this was the most meaty legal discussion of the evening.
Perhaps the common law could fill the gap, or could fill some of it
said David Anderson,
but there would certainly be a difference.
The common law is a flexible beast, he said
and we’ve seen examples of this in very recent years … I sometimes wonder if there’s a sort of judicial “Plan B” developing, in case we do withdraw from the Convention.
In those words I think David Anderson encapsulated the thoughts of many public lawyers over the last year or so, especially since the judgment he mentioned in particular – Lord Reed’s, in the Supreme Court in Osborne v Parole Board.
He thought there were difficulties with that approach, though: falling back on common law alone would make it more difficult to project British legal values in an international language:
The European Convention is a vehicle for our values – you can call them British values if you want to … it’s in a way the last imperial vehicle … I don’t think citing dicta from 1748 cases is going to be such a persuasive way of achieving that.
Bella Sankey said that in the 1990s
it was becoming increasingly difficult for the common law to withstand the ever encroaching expanse of government action … that’s why the enactment of the Human Rights Act was so timely … in the land of Magna Carta and habeas corpus it took the Convention, in 2004, to put an end to the indefinite detention of foreign nationals under counter-terrorism legislation that was passed after 9/11.
Dominic Grieve agreed:
My constituents write to me about the common law constantly … extolling its virtues in a completely abstract fashion. But of course, as we know, the reason why we had Magna Carta or for that matter why we had habeas corpus and the Bill of Rights was that the common law was not sufficient … adding and using statute to remedy deficiencies in the common law is very sensible – and the Human Rights Act is such a statute.
Lord Judge was much more sanguine about the capacity of the common law to fill the gap after any withdrawal.
I see absolutely no reason why the common law cannot provide all the protections that we need … if you look at the common law books for 1951-2, that’s the Convention.
But he fought back against the accusation that his view was outmoded:
The common law is currently very much alive and very much on the go
he said. And
I don’t see how you can work on the basis that those of us who adhere to the view that I’ve expressed in relation to the common law are somehow stuck like dinosaurs in 1950. The common law will develop if – and I’m not advocating this, and please nobody misquote me – but if for any reason we pulled out of the Convention, judges in England and – sorry, the United Kingdom – would be looking at Europe to see what decisions they were reaching, and this would influence their judgments, just like the decisions of some other countries do. Judges here don’t remain isolated in their own little embryonic shells. They look around the world for guidance and assistance.
In response to Lord Lester’s question, he insisted
The world has come on, the common law is developing and has developed and … the idea that … if we left the Convention we would revert to 1950s standards is, with great respect, absurd. We would have a huge body of law available for our judges to interpret, and move forward.
The question left open was whether Lord Judge’s approach would mean more and bolder judicial activism than we currently have from Strasbourg.
This was a serious evening of legal and political discussion by and in front of lawyers of the highest rank.
Thanks again to Brick Court Chambers for permission to use their recording of the event