Martin Howe QC: Tories will pull out of the ECHR unless Strasbourg okays our plan

by Carl Gardner on October 9, 2014

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,

Howe replied.

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

said Grieve

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

{ 8 comments… read them below or add one }

1 Peter Hargreaves October 9, 2014 at 09:40

Interesting and thank you. I for one really hope that we do not end up with a Conservative majority government in 2015. They will pull the UK out of the ECHR because they see it as standing in the way of their desire to do whatever they like. People need to wake up to this fact!

No quite sure why leading government lawyers must remain nameless if they chose to attend this event. It all sounds somewhat sinister.

Nobody in their right mind thinks that the common law would offer anything like the same protection as the ECHR. Anything at common law is subject to whatever Parliament (dominated by the executive) determines. Also, common law developments depend on appropriate cases coming forward and that could take decades.

High time the Tories published their draft bill so that we can all see the detail of their dastardly plans.

2 Claire Finn October 9, 2014 at 10:20

“Nobody in their right mind thinks that the common law would offer anything like the same protection as the ECHR. Anything at common law is subject to whatever Parliament (dominated by the executive) determines. Also, common law developments depend on appropriate cases coming forward and that could take decades.”

But isn’t that the exact approach that Carl argues for consistently? Isn’t that what Parliamentary Supremacy is? It seems it’s just *exercising* that Parliamentary Supremacy that people object to.

3 James Medhurst October 9, 2014 at 10:57

I find the discussion about whether common law could fill the gap to be bizarre. The answer is surely that common law could fill the gap but only if there is judicial activism. But surely we would prefer to have the Convention than to have our judges making the law?

In any event, I do not think that the real issue is the effect on UK law, which might not change that much. The real issue is the vast damage that withdrawal will do to our international standing and credibiltiy. How can we stand up to terrorists in places like Iraq and Syria when we have rejected our own international law obligations?

The only two countries in history to have withdrawn from human rights treaties are Venezuela and North Korea. It is extraordinary that the Conservative Party is getting into bed with Communists.

4 Carl Gardner October 9, 2014 at 14:06

Peter,

Sorry to sound sinister – it’s not meant that way.

5 Carl Gardner October 9, 2014 at 14:12

Peter,

Nobody in their right mind thinks that the common law would offer anything like the same protection as the ECHR. Anything at common law is subject to whatever Parliament (dominated by the executive) determines. Also, common law developments depend on appropriate cases coming forward and that could take decades.

James,

I find the discussion about whether common law could fill the gap to be bizarre. The answer is surely that common law could fill the gap but only if there is judicial activism. But surely we would prefer to have the Convention than to have our judges making the law?

I agree with you both.

I think there’s an ambiguity about this “pro-common law” position which I think was exemplified by Lord Judge last night as can be summed up in the phrase “the common law is all we need”.

On the one hand, it could mean an acceptance that the common law can’t “fill the gap” – but that’s okay. That would be Martin Howe’s position. On the other, it could be a radical position favouring the sort of judicial activism you mention, James, and which is determined to “fill the gap”. I reckon most “pro-common lawyers” are in the first camp, with some in the second. They agree on means, but not ends.

I wasn’t quite sure which Lord Judge is in. Perhaps in a bit of a middle position between the two.

6 Carl Gardner October 9, 2014 at 14:30

Claire,

I don’t think it is the same position, no. I think you’re more of a common law enthusiast than I am.

I think you’re contrasting the idea of common law with written constitutionalism (and so seeing Parliamentary sovereignty on the common law side, the ECHR on the other, and assuming my strong support for Parliamentary sovereignty must mean I’m for the former against the latter).

But the alternative contrast, and I think the more important one, is between on the one hand common law in the sense of law being developed by judges in their case law (which is what’s meant in this debate I think) and on the other hand, legislation made by Parliament. When those two are opposed, my instinct is to think law is better made by Parliament (or Congress) and that it’s better not to leave things to judges on the whole.

So I think it’d be much better for the UK to develop rights protections in a framework laid down by Parliament – which is what the Human Rights Act is. I also like the fact that it works within a wider international framework.

If there’s a contradiction in my position it’s that arguably support for the ECHR is in tension with support for Parliamentary sovereignty. But I don’t think this is necessarily so, really. I think the two can work perfectly well together really – so long as the ECtHR is really thoughtful and practises restraint.

I think this whole row has brewed because, just as British Europhobic politicians were turning their attention to the ECtHR, the ECtHR began making one or two mis-steps which meant criticism of it has been justified. I think the Hirst prison votes ruling was definitely a mis-step, and was clearly too interventionist. I think the DNA database case, S & Marper, was another example (but not one you hear much about, for purely party political reasons).

Abu Qatada is in a different category: although that case was an extension of the case law, it’s I think much harder to criticise, legally. It’s perfectly logical to say that, if the Convention is absolutely against torture (and sending someone abroad to face it), then it must also be absolutely against the evidential use of the fruits of torture (and sending someone abroad to face that).

7 Tim October 17, 2014 at 09:00

Courts make mistakes all the time, so why is the ECtHR being played off against perfection?

It’s for no reason other than to lay up to declare ‘we are above the law.’

I don’t think ‘Parliamentary sovereignty’ has any place in Human Rights law at all. It is incompatible with the principle of universality of Human Rights. In other words, Parliament will act at the behest of the bullying mob at the ballot box – attacking unpopular minorities. The bullies of Parliament even attack disabled people at frequent intervals, so no, away with democracy.

Hitler was elected, his brutalisation of minorities was legal – that it why the ECtHR was set up the way it was and that’s just how I like it. As a disabled person, my opinion is worth more than Howe ‘s

8 Advokatbyrå stockholm October 19, 2014 at 08:17

Interesting to see … thank you it’s well done 🙂

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