Human Rights: can we go it alone?

“Take it from me – the Human Rights Act is toast.” Martin Howe QC.

Last night the International Bar Association’s Human Rights Institute (IBAHRI) held a debate, hosted at Gray’s Inn, on the subject: Human Rights: can we go it alone?

The speakers were:

Sir Keir Starmer QC MP, a human rights barrister and former Director of Public Prosecutions, now a Labour MP, who defended the Human Rights Act 1998 and the continued role of European Court of Human Rights in holding states to account in their adherence to the Convention.

Martin Howe QC, a European Union law and intellectual property law specialist,  who was a member of the Coalition Government’s Commission on a Bill of Rights for the UK and advised on the Conservative Manifesto policy of repealing the Human Rights Act and enacting instead a British Bill of Rights, and who argued the case for reform.

Each was asked to speak in support of their position, and then in rebuttal of their opponent. The debate was moderated by Todd Benjamin, an experienced television presenter and analyst for CNN.

A video recording of the event will be published by the IBA  HRI next week, and when that happens a link willl be added here.

UPDATE 23 September 2015: the video has now been published. 

In the meantime, here is a note of the argument. (One of the things the ICLR is famous for – and for which the official series of The Law Reports enjoy judicial preference –  is the note of argument included in the reports of leading cases. But don’t expect a verbatim transcript: it’s a summary in reported speech of the main points advanced.)

Starmer began with a history lesson. Human rights, he said, had existed before World War II but World War II changed the political landscape. Afterwards the world came together and decided to form international bodies such as the United Nations and sign up to international treaties such as the UN Charter. No longer would states be permitted to do what they liked with their own citizens, as Nazi Germany had done, without having to answer to other nations. A whole generation of treaties was drafted, regional instruments expressing an agreed set of principles for states to abide by. Institutions such as the European Court of Human Rights were established in order to hold states to account.

Did it make a difference to a country like the United Kingdom? Arguably it didn’t need to incorporate the Convention because the common law already protected the rights in it. But all Commonwealth countries as they went independent were required in their constitutions to include provisions equivalent to those of the Convention.

Yet even in the UK, in a number of cases domestic law was found not to provide adequate protection.  Gays in the military could be sacked, until the case went to Strasbourg. Then the law was changed. A father was permitted to hit his daughter so that she went to school with bruises down her leg: that was considered reasonable chastisement until the case went to Strasbourg. Journalists were required to give up their sources, until they got protection.

Did it make a difference in a broader sense? Yes, it mattered. As DPP for five years, he had negotiated with other countries to establish international cooperation on issues of crime and to agree a common set of standards. In every country, for such cooperation to take place, he had insisted they comply with international human rights standards.

If the UK pulled out now, if it distanced itself from those common standards, how far would it go? The UN Convention against Torture had been signed by Margaret Thatcher. The UN Convention on the Rights of the Child had been signed by John Major. Successive Tory governments had signed off treaties such as these incorporating international standards. How far would we now roll back?

Howe said he agreed with a lot of that. In particular, the historical desire to have international regional mechanisms to prevent nations sliding back was a worthy objective. But what had been intended was a basic level of protection. It was not intended to provide detailed regulation of rights. The problem was one of enforcing norms, and the imposition of overdetailed interpretation of the rights in nuanced situations where there was room for disagreement. The balance to be struck between freedom of expression and the right to privacy and family life, for example.

A particularly stark example was prisoner voting, which had involved an endemic disregard of what the Convention actually said and the legal norms that should have provided a limit on the court’s powers. The question whether there should be an individual right to vote had been discussed at the time of the drafting of the first protocol and the UK had objected on grounds that our law did not permit it. So the resulting provision [ article 3 of the First Protocol to the Convention] simply reflected the obligation to hold free and fair elections. There was no right of particular individuals to vote. So the Strasbourg court had simply invented a right. In such circumstances, adherence to a regional convention was not only not essential, but was also pernicious.

Not everyone agreed that lawyers were the best people to undertake the political judgment of balancing rights. It was essential that democratically elected politicians had the last word, and then the domestic courts.

Did we need external structures? The UK had the longest tradition of protecting rights. We would continue to support and protect the rights in the Convention. The objection was to the regional mechanism. Australia, New Zealand, Canada and the USA all managed without such a mechanism outside their own countries. We didn’t need it either.

Starmer, in rebuttal. So, in effect, we were saying uncivilised countries need it [ie a regional enforcement mechanism], but civilised countries don’t. But how did you determine who was civilised and who wasn’t? What if you were civilised, but then you went a bit uncivilised: did you have to go back into the regional mechanism again?

The proposal to go it alone was said to be a proportionate response, because the court had overdeveloped its jurisprudence. Yet the number of applications from the UK to the Strasbourg court which ultimately succeeded was – did anyone know the percentage? [Answer from the floor: 3%] – No, it was 0.7%. Less than one per cent. And for the annoyance of that handful of cases, we were going to throw away all the benefits of international cooperation.

In the prisoner voting case, the Strasbourg court had been presented with a position in which everyone in prison was deprived of the vote, whether they were there serving a life sentence, or 14 days imposed by a magistrates’ court for shoplifting. If those 14 days happened to include the polling day of a national election, and they couldn’t vote, they had effectively been deprived of the right to participate in free and fair elections for up to five years. If the case was delayed, eg because the CPS lost the file, that could make the difference whether they voted in that election or not.

If there was a problem with the court, the proper avenue was to reform the court. It was extreme and disproportionate just to walk away. Under article 46 of the Convention states had to comply with the decisions of the court. Repealing the Human Rights Act would not solve that problem. The government would have to pull out of the Convention altogether.

What would that say about the UK – the country whose (conservative) lawyers had drafted the instrument in the first place, and insisted other countries joined up? If we walked away, other countries would too.

Howe, in rebuttal. The figure of 0.7% was out of all those applying, including all those ruled inadmissible. The proportion of admissible cases ruled against the UK was much higher. You couldn’t ignore those cases, they were pretty significant. In the case of prisoner voting, there was nothing in the Convention to enable the court to tell Parliament what to do.

Other cases causing problems included the deportation of foreign terror suspects. No one was talking about sending them back to be tortured. But the barriers to deportation went far beyond that. They had changed the goalposts, so now it wasn’t about the applicant himself being at risk of torture, but someone else, or rather not the risk of them being tortured (which the UK could not prevent anyway), but the risk of evidence  obtained by torture being used against the applicant. There’d been a whole farrago of hearings leading to delay in deporting someone who presented a serious threat. That was a serious problem for this country.

As for setting a bad example to other countries, one might ask why we should suffer the slings and arrows of outrageous court interpretation simply because if we didn’t others wouldn’t either? We needed to make clear to the court that the problem of overreach was an abuse of its judicial powers. It was an attack on the rule of law by those wearing judicial robes.

There followed a discussion, led by the moderator, and fuelled by questions from the floor.

In the course of this discussion, a question was put to the floor (most of whom were lawyers): if the UK pulled out of the Convention, were we more worried

(i) by the likelihood of other countries doing likewise and the consequential loss of regional mechanisms for enforcement of standards, or

(ii) by the risk that the rights of people in the Uk would be less well protected?

The majority was more worried about (i).

It also became clear not only that Howe was confident that the change promised in the Conservative Manifesto would indeed come to pass (the drafting of the Bill was, he said, now working its way through the parliamentary “sausage machine”), but also that Starmer recognised the inevitability of its eventual success.

After the debate, drinks were served and, although Starmer made good his escape, I eventually managed to chat with Howe.

Among the questions I asked him was why it was necessary to repeal the Act altogether, and not simply amend it.

He looked at me with a smile and said: “Take it from me – the Human Rights Act is toast.”

This explains I think why, throughout the debate, and with the mood of the floor (laden with lawyers) almost universally opposed to his argument, he nevertheless conducted himself with a sense of confidence and certainty, not only in the rightness, but also the success, of his position. Starmer, on the other had, conducted himself with a sense of the rightness of his view, and every confidence of carrying the floor, but perhaps also a sense of exasperation at the way something to which he had given his life defending and promoting was now likely to be rolled back alarmingly.

But one thing is clear. Whether it’s a sausage in a machine, or a piece of toast – or a runaway train driven by the Daily Mail – it’s going to happen.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.