Damian Green is a former Immigration and Policing Minister, and is MP for Ashford. This is an essay from Conservatism and human rights, a collection of essays published today by Bright Blue.
It is both bizarre and depressing that ‘Human Rights’ has become a boo phrase for many Conservatives. The protection of the rights of the individual against an over-mighty state has been one of the main principles of conservatism for as long as it has been an -ism, and the post-war attempts to make this British tradition a universal principle ought to make conservatives proud. Instead, we are perturbed by what courts can do with the unexceptionable ideals of the European Convention on Human Rights (ECHR), and so we are searching for a new way of cleansing the bathwater without – I hope – losing the baby.
I would start with the principle that nothing should be in this Bill that would break the principles of the ECHR. More specifically, the British Bill of Rights would have failed if it led in the future to the resignation or removal of the UK from the Council of Europe for breaching the Convention.
This is not to say that the faults are all on the British side. The European Court of Human Rights (ECtHR), which enforces Convention rights, regards it as a ‘living instrument’ which is capable of sometimes radical interpretation. It is true that the world has moved on since 1950, but the point has been reached on some occasions when the Strasbourg court’s interpretation of a human right offends against a wide consensus in the UK, and indeed what the framers of the Convention had in mind when they signed up to it. This is specifically true in the case of prisoner voting rights, which were considered and rejected by the framers.
This suggests that the real task of the British Bill of Rights is a modest one. Not to redefine Human Rights from the beginning – I would say ab initio, but I am not a lawyer – but to find a way to protect the principles of the Convention from too great a stretching by the Court, especially when it seems to be specifically defying the will of Parliament. In a slogan: ECHR yes, ECtHR not always.
This means that the bulk of the BBOR – if I may create an acronym to put it on a par with its continental equivalents – should consist of writing into British law precisely the wording of the European Convention. This is essentially the same process that the Labour Government followed in 1998 with the Human Rights Act, which was presented as a means of giving decisions back to British courts which would otherwise have been made in Strasbourg. This transposition of the ECHR into a British Act of Parliament needs to demonstrate that in no way does the British Government want to weaken its domestic commitment to human rights, nor to downgrade the ECHR in its essential role as a beacon for societies in which human rights are less habitually regarded than they are the UK or other EU countries. The rest of the Bill will need to set limits on the influence of the ECtHR.
This may be a modest task, but it is a fiendishly difficult one, because those in other countries who are signed up to the Convention – but do not hold its principles in high regard – would love to find a UK-sized loophole through which they could slip some oppressive legislation. I know they find ways of being oppressive anyway, but we should not provide them with convenient fig leaves.
The British Bill of Rights should therefore ensure in law that Parliament is the ultimate source of legal authority, and that the Supreme Court is indeed supreme in the interpretation of the law. This will mean:
- UK courts do not feel required to follow Strasbourg jurisprudence when applying Convention Rights, though they may take it into consideration;
- UK judges are not put in the position of having effectively to re-write legislation agreed by Parliament;
- Greater clarity is given by Parliament on the meaning of Convention rights in UK law, to help ensure that they are applied in accordance with Parliament’s understanding of these rights.
In practical terms, this would entail setting out a better balance of how some of the inalienable rights in the ECHR apply to cases of deportation, extradition and other removal of persons from the UK. The Strasbourg court has ruled in some cases that a ‘real risk’ – not a likelihood – of a person being treated in a way that would infringe his Convention rights is an absolute bar to his being removed to a country where this risk occurs. No balance is given to British national security in cases such as these, even though the Convention itself does not deal with such risks outside control of the state which is a signatory to the Convention.
It would also mean that any individual who has abdicated their responsibilities and infringed certain key rights of another person will not be able to pray in aid qualified rights to prevent the state taking action against them in relation to that infringement. So, for example, a foreign national who takes the life of another person will not be able to use a defence based on Article 8 of the European Convention – the right to respect for private and family life – to prevent the state deporting them after they have served their sentence.
There would also be merit in introducing a de minimis test – apologies, this really does require Latin – that will apply to the use of Convention rights in UK law, as part of the overall objective of preventing the use of these rights in areas which fall well below the intentions of the Convention’s originators and the scope of fundamental human rights.
As well as the legislative effort involved in achieving these ends, there will need to be a diplomatic effort in persuading the Council to accept these changes to our Human Rights Laws. As long as the British Government is genuinely committed both to maintaining human rights in this country and to maintaining the ECHR’s standing around the world this should not be impossible. I do not believe that there is a widespread desire to remove Britain from the Council of Europe, which would be the ultimate sanction. Therefore, although the task of producing a workable British Bill of Rights is indeed difficult, it should not be impossible, and could at best return ‘Human Rights’ to being a phrase which all of us regard in a positive light.