Dominic Grieve: It's the interpretation of the Human Rights Act that's the problem - not the ECHR itself

Dominic Grieve QC MP is the Shadow Justice Secretary and responds here to the question posed by Tim Montgomerie here earlier in the month: Can we end the human rights nonsenses while Britain is still a member of the ECHR?

In his recent lecture to the Judicial Studies Board, Lord Hoffmann produced a stinging criticism of the operation of the European Court of Human Rights (Strasbourg Court). This in turn has generated renewed criticism of both the Human Rights Act (HRA) and the European Convention (ECHR), which the HRA incorporates into our domestic law.

I was delighted to read Lord Hoffmann’s critique. It supports the reasoned criticisms that we have been making of both the Strasbourg Court and the HRA, and undermines Labour’s mantra that any criticism of either places one in some sphere of illiberal outer darkness. Ever since the Human Rights Act, the government has ducked all debate on any problems that have arisen with its operation, and refused to consider whether there could be better ways to protect our freedoms. But the Act hasn’t worked properly - and this debate is not going away.

So what has gone wrong and how can we fix it? First Lord Hoffmann’s principal criticism is that the Strasbourg Court has not limited itself to the strict judicial discipline of interpreting and applying Convention rights. Armed with the self made doctrine of the “living instrument”, it has as Lord Hoffmann put it:

“…been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states.”

Lord Hoffmann spelt out as an example how the Strasbourg Court has expanded the right to privacy and family life to second-guess UK regulation governing night flights at Heathrow. His point is that the courts have a duty to apply the law vigorously, but should be wary of law-making, which is the job of elected law-makers. The ECHR allows for the interpretation of Convention rights to differ between states under the “margin of appreciation”, but this is not being allowed to develop as intended.

In my view, this process has been exacerbated by the HRA, which in practice has been interpreted here as requiring UK judges to match the Strasbourg case law in domestic law - although this is not required by the Convention, nor practised by many other countries. Take deportation. It is well known that the Strasbourg Court has made clear that member states cannot deport people back to a place where they risk being tortured. But under UK law the HRA has also been interpreted to block deportation where it might also infringe on the right to family life. That goes further than either the Convention or the Strasbourg Court requires and risks fettering our ability to deport some criminals or those who pose a risk to security.

The HRA also imposes a duty on our courts to interpret legislation to make it HRA compatible, effectively a licence to re-write laws which reflected the will of Parliament.

At the same time the HRA has not provided adequate protection against the Government’s attack on our core freedoms. It is a shame that it took eight years of litigation, ending up in Strasbourg, to force the government to review its retention of the samples of innocent people swabbed and stored on its DNA database.

What Lord Hoffmann did not say was that the human rights principles enshrined in the ECHR text are wrong or perverse. Indeed it would be difficult to fault them in this country as they reflect deeply held British values on the rights of the individual against arbitrary or excessive state power, but inevitably kept fairly general so as to apply to different legal systems. Such a document has real usefulness in defining core values and freedoms. I am slightly mystified as to why those who argue that we should rely solely on the Common Law, Magna Carta, Habeas Corpus and the Bill Of Rights of 1689, have not appreciated the fact that these statutes were enacted precisely because the Common law did not provide sufficient protection against State power. And, as has been repeatedly stated, these statutes have been eroded and are still threatened with erosion, as the attempt at introducing 90 days detention without charge amply demonstrated.  In addition, being a party to the ECHR is a powerful statement to the world about our commitment to fundamental freedoms.

The Conservative approach, which David Cameron set out in his speech in June 2006, is to replace the HRA with our own home-grown Bill of Rights.   A Bill of Rights would be compatible with the ECHR. In areas where ECHR rights are absolute, such as the Article 3 prohibition of torture, those protections will not be removed. But there is no reason why our courts should be bound by Strasbourg Court jurisprudence, if their own interpretation is different, particularly where rights should be balanced by responsibilities.

We should also look at restoring a better balance between Parliament and the courts. It is wrong that primary legislation can be altered by Statutory Instrument if found incompatible with the Human Rights Act. Nor should our courts have power to stand a statute on its head. All these things can be addressed in our proposals for a Bill of Rights, along with the protection of historic rights such as jury trial on which the ECHR is understandably silent. We are also looking at how the right to privacy might be better balanced with the right to freedom of expression and at what other historic freedoms might be specifically protected.

The argument put forward by some is that none of this will work because we will still have surrendered ultimate authority to the Strasbourg Court and we should not live with this infringement of our sovereignty. Yet, there is no duty in the ECHR to follow Strasbourg case-law, and the obligation on the UK to respect Strasbourg Court adverse decisions, in a particular case to which it is a party, is an international treaty obligation and not a legally enforceable matter at all. It is an important treaty because it defines civilized standards of State conduct, now accepted by every European country except Belarus. It would be a strange thing indeed to abandon it and could bring international disadvantage. But it would have not any bearing on our membership of the European Union.  Nor would it solve many of the issues that exercise people. The USA is not bound by it, but it can no more deport undesirable inmates held at Guantanamo to their home countries where they might be tortured than we can or should, because it is bound by another international convention for the prohibition of torture.

By enacting a well-drafted Bill of Rights compatible with the rights in the text of the ECHR it will be far less likely that our domestic court’s interpretation of it will be faulted by the Strasbourg Court which has shown itself respectful of countries constitutional laws. It is a sensible way forward, which we will continue to work on in Opposition. If we do it with a vigorous but rational debate we can achieve an outcome that will be good for our country and the rule of law.