Rupert Myers is a barrister, writer and Deputy Chairman of the Bermondsey & Old Southwark Conservative Association.
It was Professor Hersch Lauterpacht’s 1945 book An International Bill of the Rights of Man in 1945 which first proposed a draft international bill of rights that became the European Convention. The Austrian professor of law at Cambridge wrote of a ‘radical innovation in international practice and a surrender…of the sovereign rights of the state,’ nothing less than ‘a substantial sacrifice by states of their freedom of action.’ It is that sacrifice of freedom which has brought about the debate over a British Bill of Rights. It is extremely unlikely that the drafters of the Convention could ever have expected that their first iteration would be held in such unquestioning esteem for so long without revision. The architects of the Convention would have been shocked by the way in which it has been used to curb the decisions of democratically elected governments in peacetime. David Maxwell-Fyfe, who led the negotiations that led to the European Convention welcomed the Convention as “a simple and safe insurance policy” in favour of “a minimum standard of democratic conduct”, a text that set out “a system of collective security against tyranny and oppression”. He recognised too the implications for the UK, namely that “the Convention superimposes an international code on our unwritten constitution.” Since 1959 the European Court has taken liberties with that superimposition, and the judges of England and Wales have given voice to criticism which underpins the need for a British Bill.
Part of the problem of the Convention has been the superimposition of an international code, the other part the unwritten and sometimes murky nature of our constitutional arrangement. For many critics of the Human Rights Act and the effect of Strasbourg jurisprudence, it is the Strasbourg Court’s mission creep and the requirement of Section 2(1) of the 1998 Human Rights Act that domestic courts ‘take into account’ Strasbourg’s judgments which are the most troubling problems with the current law. The European court has far overreached the basis of the original drafting. A document designed to protect Europe against autocratic dictatorships has itself created a body which imposes law by fiat, overreaching the decisions of democratically elected governments.
For some years the judiciary in England and Wales have had outbursts of barely-concealed contempt for the quality of Strasbourg’s judges. In 2009 the then second most senior judge in the country Lord Hoffman criticized the Strasbourg court, saying that rulings that had gone against our domestic courts were “teaching grandmothers to suck eggs”. Adding that the European Court had been “unable to resist the temptation to “aggrandise its jurisdiction” by laying down a “federal law of Europe”. This was not a lone outburst, but the declaration of a long-brewing argument as to the value and status of European-made judgments.
Lord Sumption, one of England’s most impressive lawyers and a Supreme Court Judge, has described Strasbourg as “the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying. It has over many years declared itself entitled to treat the [European convention on human rights] as what it calls a ‘living instrument’.” Lord Sumption described the development of human rights law in Strasbourg as occurring “by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order.”
The now-retired Lord Chief Justice Lord Judge expressed “profound concern” about the long-term impact of the tensions created by the activism of the European Court and the “democratic deficit” of a system in which the sovereignty of parliament is in question, insisting that Strasbourg “is not superior to our supreme court.” Lord Laws, the longest serving Lord Justice of Appeal, has openly criticised the subservience of the English Courts to Strasbourg, describing the approach of treating Strasbourg’s judgments as authoritative ”represents an important wrong turning in our law.” Supreme Court Judge Lady Hale has said that “the current problem facing both Strasbourg and the member states is whether there are any limits to how far the [European convention on human rights] can be developed”.
The human rights lobby arguing for the status quo willfully ignore the constitutional, democratic, and jurisprudential flaws in the current arrangement. Ignoring years of criticism from the most experienced lawyers in the country, they continue to pretend that there is more to be gained from muddling on than from accepting that Blair’s insistence that the Human Rights Act would “bring rights home” has had the opposite effect. Our parliament and our judges are calling for the status of the European Court to be reduced. Since 1959 an undemocratic body at the heart of Europe has been allowed to stray from the initial mandate, and at times we have allowed and indulged this mission creep. Those who defend it perhaps prefer the jurisprudence that emanates from Europe to the laws passed in the UK and to the decisions of British judges. Those in favour of reform prefer the democratic and public accountability of a legal system in which ultimate authority is domestic.