Lord Faulks served as Minister of State for Justice from January 2014 until July 2016.
One of the key issues post Brexit is the extent to which we should remain subject to the European Court of Justice. It may end up having some form of residual role in a post-Brexit settlement but, for the most part, Brexit surely means reclaiming sovereignty by leaving its jurisdiction. But in the debate about the future role of the ECJ, it is all too easy to forget about our continuing membership of that other European Court – namely, the European Court of Human Rights.
Those who do not spend their working lives analysing these matters can be forgiven for thinking that all the problems we have had with the Human Rights Act – i.e. difficulties in deporting terrorists, strange decisions on the scope of Article 8 and the persecution of our armed forces, and so on – are going to be things of the past post-Brexit. But this is not the case unless we repeal the Human Rights Act and/or leave the Council of Europe.
So, for those with the task of drawing up the Conservative manifesto, a decision will have to be taken about what the Government’s stance will be on the ECHR.
It is worth reminding readers of what the Prime Minister said in her only speech on Brexit – delivered a year ago tomorrow. Speaking of our future membership of international institutions she said:
“The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of Governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this. If we want to reform human rights laws in this country it isn’t the EU we should leave but the ECHR and the jurisdiction of its Court.”
At the last election, the Conservative manifesto promised that we would repeal (the word was actually “scrap”) the Human Rights Act, and replace it with a British Bill of Rights. Dominic Raab and I were charged with bringing forward a consultation paper on the Government’s proposals. It never saw the light of day because of Brexit; but I can say that it reflected Government policy, which was not to leave the Council of Europe, but to replace the Human Rights Act with a British Bill of Rights, thereby putting some distance between us and the Strasbourg Court but, at the same time, retaining the rights reflected in the Convention, and giving more power to our own Supreme Court and to Parliament. This was the “lite option” for reform of the HRA.
As a barrister practising in the field of Human Rights since the Act came into force, I was never convinced that it added significantly to the protection of human rights, as most people would understand them. That is not to say that all the decisions of the Courts either here or in Strasbourg were wrong. But I could not see why human rights could not be protected perfectly well through the common law – in other words, by letting our judges develop the law, while leaving the matter primarily to Parliament.
To give but one example, the Convention quite rightly outlaws slavery – but expresses this in generalities. Parliament, on the other hand, passed the Modern Slavery Act, which was a nuanced piece of legislation dealing with the modern manifestations of slavery. This way of proceeding identified current challenges to the protection of human rights, and provided bespoke solutions – rather than adhering to some unexceptionable generalities, and leaving it to the judges to develop the law often by reference to some rather strange Strasbourg decisions.
So what are the choices left to the authors of the current manifesto? They could of course say nothing. Until the election was called, the indications were that the Government had enough on its plate with Brexit, but would approach the 2020 election with the repeal of the Human Rights Act as one of the key elements in the manifesto. If that approach is replicated, it would effectively defer repeal of the Human Rights Act until, probably, 2022.
The main argument in favour of saying and doing nothing is that Brexit is sufficient constitutional fare for any one Parliament. But if the manifesto is silent on the point, and the Government later decides that it will after all bring in relevant legislation, I anticipate real problems in getting it through Parliament, particularly the Lords. The Government does not have a majority there; the Upper House is firmly in favour of the status quo, and peers would not in these circumstances be restrained by the Salisbury Convention, since the legislation concerned would not have been described in the manifesto.
That matters at present are relatively quiet with Strasbourg also favours inaction. There are some signs of the Court affording us a margin of appreciation – i.e: not interfering and, apart from the vexed question of prisoners voting, we have a very good record in bringing into effect adverse decisions from Strasbourg without frightening the horses too much. We have a pretty good relationship with the Court, which values our contributions to the budget and to the jurisprudence.
However, problems such as those extreme difficulties with getting rid of terrorists will inevitably crop up again. The Prime Minister will be only too well aware of this, after her six years in the Home Office. So under these circumstances the question may well be asked why, with a substantial majority, nothing was done to deal with this longstanding problem.
The final point in favour of doing nothing is that the Supreme Court, having once been inclined slavishly to follow every decision from Strasbourg, is showing signs of wanting to develop the common law, and not to follow decisions from Strasbourg with which they disagree. There has thus been developed what is quaintly referred to as a “dialogue” between the Supreme Court and the ECHR – though at present that dialogue is noted for its Pinteresque silences.
But if the manifesto is to deal with the Human Rights Act, what should it say? Should it follow the 2015 approach, and propose that there should be a British Bill of Rights, but that we should none the less remain part of the Convention (the “lite” option)? Or should we simply repeal the Human Rights Act and leave the Council of Europe as the Prime Minister seemed to suggest last year? (The “full fat” version ) Either option will provoke howls of anguish, and claims that the Government is trampling over human rights, and will create difficulties with its devolution settlements. But with an appropriate mandate, these problems can be surmounted.
The braver and cleaner option would be the “full fat” one: leave the Council of Europe altogether, repeal the Human Rights Act and allow our own courts and Parliament to protect human rights. There are perfectly good reasons for placing human rights in the “too difficult” box, whilst the Government tackles the huge challenge of Brexit. But if Brexit was about anything, it was about sovereignty and, while we remain part of the ECHR and have our own Human Rights Act which incorporates reference to the Strasbourg Court, we will continue to cede a significant amount of sovereignty to that other European Court. A substantial majority after the election would enable the Prime Minister to leave the jurisdiction of the ECHR, just as she said she wanted to do. Such an opportunity may not come again .