Some say that universal human rights don’t exist at all. (How can members of a tribe with no conception of property have a right to it, for example?) But belief in human rights is part of the spirit of the age – expressed, for example, in Britain’s membership of the European Convention of Human Rights and its consequent obligation to accept the judgements of the European Court of Human Rights. They are a way of imagining and realising justice.
While the origins of the Court “mirror British constitutional traditions of freedom and the rule of law…the actual drafting obviously reflects a compromise between competing common law and civil law concepts…I point this out, because there has recently been something of a tendency recently to suggest that the ECHR was a near perfect Conservative construction, willed by Churchill, and crafted by British barristers without any reference to the wider diplomatic process involved in drafting any treaty.”
The author of these words is Dominic Grieve, the former Attorney General – seen by some Tories as a mere apologist for the court, and who Chris Grayling also quotes in his article on this site this morning. The Court, Grieve said, has been transformed from “an international tribunal adjudicating on a few major cases… into an appeal court ruling on the minutiae of administrative decision-making, ranging from what is allowable in smacking a child to what degree of ill health is needed before deportation becomes a cruel and inhuman act”.
Or, to put it more plainly, the Court has turned its back on the original vision of the Convention. As Lord Hoffman has said, it “has been unable to resist the temptation to aggrandize its jurisdiction and to impose uniform rules on member states”. Quoting Hoffman, Grieve also said that “the jurisprudence of the Court is uneven in quality, sometimes poorly reasoned and uncertain in scope, the result of its expansion and increasing lack of jurisprudential homogeneity and collegiality on the back of the greater number of states adhering to the ECHR”.
I have quoted Grieve at length to show that senior Conservatives, for quite some time, have shared an unhappiness with the Court and a willingness to contemplate radical change – even before the stand-off between the Commons and the Court over votes for prisoners. In the lecture from which Grieve’s remarks are taken, he made the case for scrapping Labour’s Human Rights Act and replacing it with a British Bill of Rights – in which “the Convention rights should be included verbatim or reworded”. This later became part of the last Conservative election manifesto.
In many ways, there is continuity between these proposals and those which Chris Grayling has announced today. Under a majority Conservative Government, the Human Rights Act would go and a British Bill of Rights would arrive. The latter would put the text of the original Human Rights Convention into primary legislation: Grieve said in his lecture that “my own inclination would be to use the Convention rights as currently drafted, as a starting point”. So far, so consensual.
It is at this point that the Justice Secretary begins to open up new ground. As his article says, the Bill would be one of Rights and Responsibilities. There would be “limitations” on how rights can applied. There would be “caveats”, “a triviality test”, a change to the definition of “degrading treatment or punishment” (in one case, the fact that an individual would have had to live in a particular city in Somalia was deemed to put him at real risk of degrading treatment), and a limit on reach. Grayling wants to “prevent cases being brought against our Armed Forces overseas”, and curb exploitations of the Right to Family Life that allow travellers to occupy green belt land, or foreign criminals to exploit immigration laws.
All this sounds like simple common sense. None the less, it will provoke fury. The Left and many lawyers will argue that these tests and caveats and limits so alter the human rights on offer from the Conservatives as to render them not human rights at all. Watch for claims that they are incompatible with international human rights norms and for judges declaring that they would refuse to be bound by them.
No wonder the Justice Secretary has slapped on to his plans what he calls a “future-proof”: “If our courts continue to set a direction which Parliament completely disagrees with, Parliament will be able to introduce additional limitations on where and how human rights can be applied through our British Bill of Rights and Responsibilities.” This precaution is arguably unnecessary: since Parliament is sovereign, it can ultimately act as it wishes. But it is highly suggestive. Grayling clearly believes that our own courts, as well as the European Court, have been “aggrandizing their jurisdiction”.
The most sweeping proposal of all concerns the Court itself. “Our Bill will break its formal link to UK Courts, so they no longer need to take account of its decisions. That will leave the European Court of Human Rights as only an advisory body in the UK,” the Justice Secretary writes. If the Court and the Council of Europe do not consent, “we will invoke our treaty rights to withdraw from the Convention altogether, to coincide with the passage of the new Bill into law”. Grayling is marching the Conservatives towards the ECHR exit door.
The Justice Secretary’s plan seems to have been held back from Party Conference in order for it not to swamp David Cameron’s NHS and tax announcements. This is a big moment for him – a chance for this toiling Minister, on-message broadcaster and attack dog to grab a share of the limelight, and up his credentials as a force on the Right of the Party. But it is an even bigger one for the Conservative Party as whole. Philip Hammond, Theresa May (who wanted to leave the ECHR outright), David Cameron himself – all are signed up. In essence, the Party is taking one of two positions. It is either saying that the Court isn’t good enough for Europe – that a new continent-wide dispensation is needed, perhaps; or that human rights should be a matter for national courts – or that the Court simply isn’t good enough for Britain, and that we should therefore regain control. Either view represents a startling break with the past.
Perhaps the Conservatives, in Government, would resile from quitting the Court and Convention. Most likely, there will not be an overall Tory majority at all (though there is every chance of David Cameron making it back to Downing Street none the less). But the significance of the signal that the Party is sending can scarcely be understated. Not so long ago, Conservative leaders sought to enter European institutions – the Common Market; the Court itself. Macmillan and Heath and Thatcher (in government) went one way; now Cameron is going the other. For the first time, he is signalling that under his leadership Britain will break with a European institution. The implication for any EU renegotiation is so obvious as not to need spelling out. All this, the Left will crow, represents the Farage-isation of the Prime Minister. (Grieve has denounced the proposals as “unworkable” and “almost puerile”. How many other Tories will share his view?)
Grayling’s proposals aren’t very brave: were they so, he would have announced that a Conservative Government would simply quit the Convention and Court. But they are extraordinarily bold – a flash of lightning from out of the blue. There are unanswered questions. For example, what would become of the commitment in the Belfast Agreement to incorporate the ECHR into the law of Northern Ireland? What about Wales and Scotland? Wouldn’t the judges carry on importing ECHR principles and jurisprudence in any event? What would those responsibilities – those limits and caveats and tests – be mean in practice? What would the knock-on effect of the plans be on Britain’s EU membership? The devils and angels would be in the detail. But the big picture is dramatic. This is a political event of the first order.