Gibraltar implications. The pressing case for a constitutional court

Richard Gordon QC is a practising barrister specialising exclusively in judicial review.

The Government has expressed “incredulity” at the European Court's 'Death on the Rock' verdict. Yet, barely 24 hours after the court's judgment, Mr Justice Dyson, in a landmark ruling, held that Home Secretary Michael Howard had “unreasonably and unlawfully” delayed parole hearings for five of the country's longest-serving IRA prisoners contrary to the European Convention on Human Rights.

In both cases, the UK Government was found to have acted unlawfully and contrary to the European Convention. Mr Justice Dyson's High Court ruling, however, was only possible because he also found that Howard had acted in breach of the common law. English judges cannot pronounce on the European Convention in isolation as it is not part of UK law.

Ministers' responses to the European Court ruling have veered from the outraged to the apoplectic. A Cabinet committee chaired by the Prime Minister apparently has not excluded the possibility of withdrawing from the convention.

The same response cannot easily be made to Mr Justice Dyson's ruling. For one thing, Howard cannot be heard to say that this is a judgment by a foreign court that defies common sense. The Government cannot threaten to pull out of this country's adherence to common law as interpreted by Her Majesty's judges. To do so would be seen as breaching the separation of powers intrinsic to our constitution.

This difference of perception between a national and an international court judgment is the key to why the European Convention of Human Rights, or its equivalent, must be introduced into domestic law.

The political tensions generated by adverse rulings of the European Court of Human Rights may be predictable. But they would be containable if the convention were incorporated or if we had a national bill of rights with a constitutional court along the lines of the US Supreme Court.

Many believe that our judges are the repository of constitutional rights so we do not need an articulated code of human rights.

This was the argument that was effective in persuading the House of Lords in Brind (the challenge to the terrorist broadcasting ban), to hold that the European Convention was not an aid either to interpreting the common law or to statutory construction, save where the law was ambiguous.

The reality is otherwise. Ministers' implied threats to review this country's adherence to the European Convention are sinister precisely because there is no domestic institutional guardian of human rights.

That is why we need incorporation and a constitutional court, and fast.