British Human Rights – a brew to be strengthened not watered down
A speech given at the Scottish Association for the Study of Offending Annual Conference.
I was very pleased to receive an invitation from Professor Spencer to speak this evening, especially because this year the Scottish Association for the Study of Offending has chosen Europe - “The Impact of Europe on Criminal Justice in Scotland” – as its theme. By “Europe”, I understand that is what is meant is the European Union, with its Commission, Council, Court of Justice and Parliament; and also the Council of Europe, with the European Convention on Human Rights and the Strasbourg European Court of Human Rights. That is, the whole collection of European institutions, sometimes demonised in sections of the popular press as “Europe”, the source of all ills and the ultimate carrier of blame for unpopular developments in the law.
The Association has certainly picked a topical subject. Only a hermit cut off from all sources of news could have missed recent developments in the European Union, where the future direction of the Union seems to change on a daily basis. And it is also a time of change for the Convention – it has perhaps been less newsworthy, but earlier this month (7 November) the UK took over the chairmanship of the Committee of Ministers of the Council of Europe – that is, the international organisation which gave birth to the Convention and oversees the development of the Convention and the Strasbourg court which adjudicates it.
One of the things the UK aims to achieve during this period is reform of the European Court of Human Rights. I should stress that we are not seeking to weaken that court or reduce its powers because this Government supports the Court and supports the Convention. A coalition government requires, by its very nature, compromise by both parties. But on this subject – the importance of the European Convention of Human Rights – both the Liberal Democrats and the Conservatives can be completely uncompromising. Some things are supported because they are in the Coalition Agreement, but this is something which is supported because both parties are in agreement. The application of Convention rights in this country will not be weakened, and it is absolutely clear, and senior figures in both parties, have made it clear, that the United Kingdom will not be the first country to leave the Convention. Or, as the Lord Chancellor, Ken Clarke, more accurately expressed it earlier this year: “Only the Greek colonels have ever repudiated the convention on human rights” But that simply reinforces the point – only a military government, ruling by force, has so far disowned the Convention, and in a country which rejoined when democracy was restored. The UK signed the Convention on the first day it was available for signature (4th November 1950). This country was the first to ratify the Convention – it is not going to leave; rather, it will use its influence and authority as a founder member to reform and improve, to build on the existing institution.
The Coalition partners are in agreement that human rights are central to the UK’s foreign policy. We aim to promote human rights in other parts of the world – and we aim to achieve this mainly by being an example of a country that upholds those rights itself. And a consequence – an inevitable consequence – of providing that example is that sometimes the courts will find against the government. It has been said before – but it cannot be repeated too often – which of us would wish to live in a country where the government always wins its court cases?
Originally there were ten member states in the Council of Europe (there are now 47 – pretty much the whole European continent). The UK then went on to become the first country to ratify the Council’s most famous instrument, the Convention on Human Rights, but that process was not all plain sailing. I had occasion some months ago to look more closely at how the UK came to adopt the legal obligations in the Convention, and I was reading an account of the Cabinet’s deliberations at that time. It was only a few years after World War Two on a continent scarred by the recent experience of Nazism and Fascism, with Stalinism still spreading across Eastern Europe, when the Convention was considered by Cabinet – between 1949 and 1951, and the Labour Party was in power in Britain. In the summer of 1950, the Cabinet discussed a memorandum by the Foreign Office Minister, Kenneth G Younger. He had raised a concern about whether the Convention should allow the right of individual petition to the Court, and his thoughts illustrate how far the culture of human rights has come. He said: “The proposal to allow individual petitions was unacceptable to us because in the present state of international relations it appeared likely that the system would be abused for political purposes and because there appeared to be a danger that it would be misunderstood among the backward people of the Colonies as suggesting that the ultimate source of authority in those territories resided elsewhere than in the Crown.”
It is perhaps unfair to quote selectively from old documents to highlight statements which seem incompatible with contemporary progressive thinking, and to be fair I should also point out that Mr Younger went on to explain why the UK must support the Convention, making a point which still rings true today: “Thus it would be hailed on the Continent as further evidence of the luke-warm attitude of His Majesty’s Government toward the affairs of the Council of Europe in general and might be expected to be seized upon by the Cominform [that was a body set up by Stalin to draw together all the European Communist parties] as showing that our professed interest in the enjoyment of human rights by the inhabitants of other countries was mere hypocrisy and that when it came to the point, we were unwilling to accept in respect of our own territories obligations similar to those which had been imposed upon the Eastern European States under their peace treaties.” At that time, as now, the Government’s foreign policy aim was to foster democracy and the rule of law in countries where it had been lost or was under threat. And it was only by signing up to the standards set out in the Convention that we could speak to the world with any moral authority, and exert influence to spread the values embodied in the Convention.
My interest in reading the Cabinet minutes was to consider their discussion of the Right to a Fairly Elected Legislature, a right which is now enshrined in Article 3 of Protocol 1 of the Convention. The UK had successfully argued against the use of the term “universal suffrage” and it has been suggested that the Government at that time had wisely anticipated that sixty years later the issue of prisoner voting rights would be the subject of public controversy. However, in fact their concerns were of a different order. Their worry, echoing the point about the right of individual petition, was that a reference to universal suffrage might “draw attention to the Colonies in an unfavourable light”. Another fear was (and I quote) “…the possibility that the Article as drafted might require us to adopt an electoral system of proportional representation.” It seems that the government feared agreeing to one sensible democratic proposal for fear that it might lead to something even better!
Some of the Cabinet were quite hostile to the Convention. Herbert Morrison, the Cabinet Secretary (and grandfather of Peter Mandelson) said “I have always been against this Convention – all of it. Humbug.” And the Attorney General of the day, Sir Hartley Shawcross, thought there was a risk that the march of Convention rights might not stop – there was, he noted, a “danger that a Conservative Government might accept the jurisdiction of the court”. However, it was the Labour Party itself, when it returned to power in the 1960s they went a step further and allowed individual petition to Strasbourg. (1966) From that point on, it was a perfectly reasonable and rational proposition that, if a litigant can take a case to the European Court of Human Rights on Convention grounds, then he or she should be able to bring cases on the same basis before courts in the United Kingdom. That is, in the phrase used by the last Labour government when it introduced the Human Rights Act, “Bringing Rights Home”. I think it is recognised across the political spectrum that the introduction of the Human Rights Act was a major achievement by the Labour administration, and they were right to emphasise that the rights set out in the Convention were “coming home”. But the Convention did not invent the right to a fair trial; the independence of the judiciary; the prohibition of torture; the right to assemble and hold public meetings…those rights were already embedded in this country by common law and statute. Our law on property, on delict, on evidence and so forth is based on our right to enjoy possessions, to be free from bodily harm, to have our disputes resolved in court on a rational basis.
To take one colourful example: section 5 of the Treason Act 1708 was cited in the 2006 House of Lords case A v Home Office1 - no person accused of any crime can be put to torture. That was one of the first Acts of the Westminster Parliament following the Acts of Union to apply to Scotland as well as England. It was considered necessary because when the Star Chamber was abolished in England in the 1600s, torture became problematic as an instrument of government in England, but not in Scotland. It was the period of the Union of the Crowns but not of Parliament and apparently a practice had arisen whereby prisoners were transferred from England to Scotland where application was made to the Scottish Privy Council to take evidence by torture – ‘extraordinary rendition’ is a practice with a long and ancient tradition behind it.
But, as I suggested earlier, there is no doubt that human rights gets a bad press. Some of the beneficiaries of Convention rights appear to be drawn from unpopular sections of society – from the property rights of merchant bankers, to the fair trial rights of the criminal accused, to the voting rights of prisoners. Perhaps that is because the whole point of a rights culture is that it protects unpopular people. But it is also because less publicity is given to the wider achievements of the Convention – the Deputy Prime Minister Nick Clegg listed these recently: “The Human Rights Act and the European Convention on Human Rights have been instrumental in preventing local authorities from snooping on law-abiding families, in removing innocent people from the national DNA database, in preventing rapists from cross-examining their victims in court, in defending the rights of parents to have a say in the medical treatment of their children, in holding local authorities to account where they have failed to protect children from abuse, in protecting the anonymity of journalists’ sources, and in upholding the rights of elderly married couples to be cared for together in care homes…Some of these cases were decided in Strasbourg; many others were resolved by British courts thanks to the incorporation of the convention into domestic law under the Human Rights Act. . But one has to acknowledge a sense of public frustration at the way our rights culture is developing – this is no time to stand back and admire the achievements of the past. The Human Rights Act is simply the means by which the Convention is incorporated into our law, but it does not need to be set in stone for all time. This Government is looking at creating our own British Bill of Rights, and, in March this year, established a Commission to that end. That Commission published a discussion paper posing a number of questions, which was open for response until 11th November. But I should stress, and my colleague the Attorney General made this same point in a recent speech, this Government does not intend to limit or erode the application of any of the rights and freedoms in the Convention. That is not the purpose of the exercise. The Commission’s reference tasks it with building on the obligations in the Convention, and to protect and extend our liberties. It is “to consider ways to promote a better understanding of the true scope of these obligations and liberties.” The Commission’s report is expected at the end of next year, but we have some early recommendations about the European Court of Human Rights. As I said at the beginning, we now have the chairmanship of the Committee of Ministers of the Council of Europe, so we can take these forward. For example, the Court needs to concentrate its resources on serious cases, where the Convention is not applied properly, or where there is a need across Europe for guidance on the correct interpretation of the Convention. At present there is a huge backlog of cases – possibly around the 160,000 mark – and many of those cases should be dealt with at national level, leaving the court to concentrate on those cases where it can make the most effective contribution.
New rules and procedures are required to help the court focus only on the cases that truly require its attention. Some thought also has to be given to the large number of inadmissible and repetitive cases which are brought before the court. We also need to look at the way judges are appointed to the court, providing clear recommendations as to how selection procedures operate at national level, to ensure that the best qualified judges sit on the court.
And perhaps the most significant development, particularly in the light of the “bringing rights home” agenda, is that we will strengthen the principle of subsidiarity. It is the governments, legislatures and courts of the member states who have the primary responsibility for the protection of human rights – that is the principle of subsidiarity; and it is has been recognised by the Council of Europe (in the Interlaken and Izmir Declarations) and also in the jurisprudence of the Court of Human Rights. In practice, it means that where the Convention is being properly applied in member states, the expectation is that the Strasbourg Court should not normally need to re-consider cases which have been properly considered by national courts. Also, the concept of a “margin of appreciation” afforded to member states should be strengthened. As the court itself said (in Greens and MT) “…the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight.” There are serious challenges facing the court – to improve its efficiency, to relate better to the courts and parliaments of the member states, and, in the longer term to reinforce its authority. The UK’s aim, during its period in the chair, is to build a consensus among the 47 states on a package of measures which can be announced by Declaration at a Ministerial conference in the UK next year. That Declaration will then lead to the Committee of Ministers, at its annual meeting in May next year, adopting a Decision leading towards any necessary amendments to the Convention.
The UK is also looking to start the process of some strategic thinking by the member states on the long-term future of the court. I would like to conclude by turning briefly to that other strand of the European project – the European Union. Like the Convention on Human Rights, the EU provides benefits for ordinary people which rarely receive much publicity. It is tempting to be pessimistic about the future of the European Union these days. But it is precisely because there is a ‘crisis’ in Europe that we would do well to reflect on the question, paraphrasing Monty Python, “What has Europe ever done for us?..” What it does, quietly and in a way we have come to take for granted, is help our businesses expand and trade across the continent.
My colleagues in BIS recently drew my attention to research which suggests that EU countries now trade twice as much with each other as they would do in the absence of the Single Market. Since the growth of the single market in the 1980s, it is thought that increased trade with the EU may have pushed the income of UK citizen’s up by as much as 6%. To put it another way, that is £3,300 per year for a typical British household.
Our companies report that there are fewer barriers to entering the European market than other markets in the world. That means that Europe often offers British companies a chance, perhaps their first chance, to trade in international markets, because it is an easier market to join. That first trading experience encourages companies to develop their export capabilities, and they can then progress to more difficult and remote markets.
We can also look towards the Services Directive being fully implemented, and that will assist British companies who have a comparative advantage in that area. In the field of intellectual property, we will soon have a European patent. We can expect measures to liberalise the digital economy across Europe, allowing proper on-line trading across the EU.
And above and beyond trade, the EU is one of the greatest achievements in history in recent years; helping to bring democracy to the whole of Europe, to have supported peacekeeping, to be the most effective answer to climate change because we can’t do it on our own, to deal with organized crime, because, again, we can’t do it on our own.
We cannot underestimate the seriousness of the challenge facing Europe today. Some may say we are at a crossroads. All the more reason then to look at the case for the European Union. It is a major case and that is the context in which I hope this weekend’s important conference deliberations are approached.