It’s worth reminding ourselves that Britain already has a Bill of Rights. Lord Macaulay, writing in the 1840s, called it “the germ of every good law which has been passed during a hundred and sixty years, and of every good law which may hereafter, in the course of ages, be found necessary to promote the public weal, and to satisfy the demands of public opinion.” Nick Clegg called it “some law dating from 1689”.
I’m with Macaulay, obviously. But here’s the thing. The Bill of Rights did not elevate any rights above Parliament; rather, it made Parliament the protector of our rights. Our tradition is, in this regard, very different from the Continental one, where certain constitutional entitlements are lifted out of politics and safeguarded – in theory, at any rate – by judges.
There are arguments in favour of both models. But one conclusion is hard to miss: the British tradition has been the surer guarantor of freedom. Unlike most Continental countries, we have never, since 1689, fallen to dictatorship or revolution. While fascist and communist parties have at times attracted significant support across Europe, their appeal in the Anglosphere has always been negligible.
The European Convention of Human Rights (ECHR), with its politicised court, may be bolted easily enough onto a country with a written constitution. But it contradicts our own Bill of Rights, which, in its first clause, proclaims: “The pretended power of suspending the laws or the execution of laws without consent of Parliament is illegal.”
Chris Grayling now intends, in effect, to resuscitate our own settlement, by making explicit the primacy of Parliament over the ECHR. He has constitutional propriety on his side: the Bill of Rights remains on our statute book, although it has been abused with insouciance over the past half century.
His announcement has antagonised the articulate and wealthy human rights industry which has grown up since the 1990s. Whole chambers have come into being to service a corpus of law which, 30 years ago, barely existed. For human rights lawyers, the status of the ECHR is not an abstract question of parliamentary sovereignty, but a very immediate question of school fees. There are also, of course, principled supporters of judicial supremacy and, together with the human rights professionals, they make a powerful lobby. Mr Grayling can expect to be savaged by QCs and judges, though my guess is that public opinion will remain solidly behind him.
I keep coming back to one question, though. What specific benefits accrue to the United Kingdom as a result of our adherence to the European Convention on Human Rights?
Supporters of the ECHR usually respond by saying something about sending the right signals, or encouraging reformers in Albania or Azerbaijan or some such. But that’s the answer to a different question and, in any case, it isn’t true. When Putin’s Russia can happily sign up to the ECHR, the idea that Albanians or Azeris will be much affected by Britain’s relationship with it with it is fanciful.
The advantage of the ECHR is meant to be that it prevents human rights abuses. But Britain doesn’t have a problem with human rights abuses, at least not in the sense that the framers of the Convention would have understood in the late 1940s. We don’t deport whole populations, or confiscate property without due process, or put political dissidents in mental asylums. Lacking a proper outlet, the ECHR has become mainly a vehicle for frivolous and vexatious claims
One can’t help noticing that these claims are more often made by scoundrels than by honest citizens: terror suspects seeking to avoid trial, illegal immigrants fighting deportation orders, convicts asking for extra perks. Perhaps, in some cases, the scoundrels have a point – being a scoundrel doesn’t automatically put you in the wrong – but surely we can determine the rights and wrongs of their claims ourselves.
Consider the row over whether prisoners should vote. At present, certain prisoners do have the vote: those on remand, for example. And even under the ECHR’s scheme, some convicts would remain disenfranchised. So what we’re arguing about is where precisely to draw the line. Now I’m happy to accept that there are arguments on both sides, but surely they are political arguments, to be determined through our national democratic procedures, not questions of fundamental human rights.
The ECHR, in short, is exacerbating our democratic crisis (the widespread feeling that how you vote makes no difference) without improving our civil freedoms (which have never depended on foreign courts).
So why not leave the ECHR cleanly? My guess is that ministers are concerned that outright abrogation would trigger our withdrawal from the EU. As an opponent of EU membership, I see this as a bonus. Still, what is being proposed would at least be an improvement on what happens now.
It might even set a precedent when it comes to the EU. Suppose, for the sake of argument, that we were to take the same approach to the Brussels institutions as to the ECHR. Suppose, in other words, that we were to remove the direct applicability of EU law (a doctrine invented by the European Court of Justice in the 1960s in an act of stunning judicial activism) and restore the supremacy of English and Scottish law on our own territory.
In practical terms, this would mean repealing or revising Sections 2 and 3 of the 1972 European Communities Act: the parts that give EU law precedence over our own. EU regulations and ECJ rulings would then have effect in Britain only following implementing legislation by our own Parliament. Don’t the same arguments apply? Why won’t Conservative ministers extend their own logic?
Opprinnelig i The Telegraph den 3. oktober 2014.