Former Director of Public Prosecutions Sir Keir Starmer QC has given a passionate defence of the European Convention on Human Rights, but accepts that the Human Rights Act is probably about to disappear in favour of the Tories’ proposed British Bill of Rights.
The Doughty Street barrister and newly-elected MP for Holborn & St Pancras, who was urged to stand for the Labour leadership after Ed Miliband stood down in May, squared off against Martin Howe QC of 8 New Square, who is one of the most prominent critics within the legal profession of the European Court in Strasbourg and was a member of the Coalition Government’s Commission on a Bill of Rights.
In an event on Thursday night chaired by CNN journalist Todd Benjamin, they debated the question, ‘Are regional mechanisms such as the the European Court of Human Rights and the European Convention on Human Rights an essential part of human rights protection, or can we go it alone?’
Starmer, opening the debate, argued that until the passing of the Human Rights Act (HRA) British law had been unable to cope adequately with a number of human rights issues, citing as one example the case of gays in the military being summarily dismissed after being outed: “No matter what your record, no matter how much you’ve risked for your country, you’re gone. That’s what happened in this your country in one of the last cases before the Human Rights Act came in,” he said.
“It was challenged in our courts, but the challenge failed. The only place the challenge succeeded was in Strasbourg in the European Court. They looked at the standard and said: ‘That’s a breach of a fundamental right,’ and after that everybody recognised that we were out of step with international standards, and the law was changed.”
Starmer also said withdrawal from the European Convention would damage Britain’s standing in the world and that human rights enforcement would start to “disintegrate” as other countries followed in its lead to walk away. He asked: “What would [withdrawal] say about the UK, the country that is proud of the fact that it crafted the instrument in the first place, that is part of the family of nations that stands up for human rights, and that around the world insists other nations comply with these standards?”
On the other side of the debate, Howe argued that the European Court in Strasbourg continually over-reached itself, saying that it was not originally intended to provide detailed regulation of rights, and that elected politicians and not lawyers were the correct people to weigh potentionally conflicting rights, such as the right to freedom of speech versus the right to a private life.
As an example of over-reach Howe gave the example of prisoner’s voting rights. He recalled that when the Convention was first drawn up the right to vote was specifically not included as Britain objected due to its own prisoner voting laws.
”On no basis does it contain any right of particular individuals to vote,” said Howe. “Despite that, the Strasbourg court in a series of cases has simply invented a right which the states who agreed to the convention never intended should be conferred, and had sought to impose it.”
“In these circumstances it is my view is that not only is adherence to a regional mechanism not essential for the protection of human rights, but with this particular convention and the way in which it is operated, it is pernicious to continue to adhere to interpretation of the convention which Strasbourg seeks to impose upon us.”
He concluded: “This is a problem of judicial overreach, of abuse of judicial powers. It is an attack on the rule of law by people wearing judicial robes. We can’t end it because we can’t control the court in Strasbourg, but we can stop ourself being subject to it.”
Both Starmer and Howe agreed that the scrapping of the Human Rights Act in favour of the Tories’ proposed British Bill of Rights was now likely. Howe said: “I think it will happen in the next session [of Parliament] or the possibly session afterwards,” while Starmer conceded it “may well happen,” although he would oppose it.
Starmer added: “It will be very interesting to see what is written down in a British Bill of Rights… I suspect it will as near as damnit to the rights in the European Convention and that’s one of the reasons no draft Bill of Rights has ever been published, because because the public would look at it and say, ‘I thought you didn’t like this European Convention.’”
The debate: key quotes
Sir Keir Starmer QC
“Imagine you’re gay and in the military, that you’ve dedicated your life to the military, risked your life for the military. Imagine someone suspects you’re gay. They raid your locker, go though your personal correspondence, find out you’re gay and that’s it: you’re fired: No matter what your record, no matter how much you’ve risked for your country, you’re gone.
“That’s what happened in this country in one of the last cases before the Human Rights Act came in. It was challenged in our courts, but the challenge failed.
“The only place the challenge succeeded was in Strasbourg in the European Court. They looked at the standard and said: ‘That’s a breach of a fundamental right,’ and after that everybody recognised that we were out of step with international standards, and the law was changed.”
“There are other examples. A case went to the European Court of a father who used to hit his girl when she was naughty with a stick so hard she that had bruises down her leg. Our court thought that was reasonable chastisement. Only when that case went to Strasbourg did we begin to appreciate we were out of step with evolving norms of human rights.
“Journalists used to have to give up their sources when asked by police, and it was only when their case went to the European Court they got protection.
“So it really made a difference in individual cases. Does it make a difference in a broader sense?
“Yes, it does.
“These are standards that we have bound to and have practical effect. I was Director of Public Prosecutions for five years. That meant I was responsible for negotiating with other countries how we dealt with serious crime. The only basis for international co-operation is we’ve agreed an international set of standards.
“And if we were to pull out from the European Convention and Court and go it alone, decided we no longer need to be linked internationally, how far are you prepared to go? The UN has drawn up lots of instruments covering different areas. There is a convention against torture: a really important international convention with a mechanism external to the UK for enforcement, and guess who signed off that convention? Margaret Thatcher. She could see how important it was that we tied ourself in internationally on a really important issue.
“There was UN convention on the rights of the child, which is increasingly important. It’s at the heart of the current debate on refugees. That has a mechanism internationally for enforcement. Guess who signed off on that? John Major. Successive Tory prime ministers have recognised how important it is for the UK to stand on the international stage and bind itself to international standards so it can have a powerful voice across the world.”
“If there’s a problem with the Court, what is the problem with the concept of reform? Nothing’s perfect: the European Court could do with reform, but it is extreme and disproportionate to simply walk away.
”And if we do, what does that say about the UK, the country that is proud of the fact that it crafted the instrument in the first place, that’s its part of the family of nations that stands up for human rights, that around the world it insists other nations comply with this standards. If we walk away, other countries will walk away and the whole system will start to disintegrate.”
“Martin says the Court has developed all this jurisprudence, taken all these decisions, and is imposing on us all the time. What is the percentage of cases taken against the UK and get to Strasbourg and succeeed? 0.7 per cent: that’s how many cases against the UK get to the Court and succeed: all the rest fail along the way. So for that handful of cases we throw away international arrangements and our international reputation.”
“It will be very interesting to see what is written down in a British Bill of Rights, because Martin says if you ask people, they’ll say they don’t want [the Human Rights Act].
“But if you ask people if they want the right to life, they’ll say, ‘That’s all right, yeah’.
“The right not to be tortured? ‘Yes’.
“Do you think people should have the right to a fair trial? ‘Oh, definitely.’
“Do you think you privacy should be protected? ‘Yes, big tick for that.’
“Do you think you should have the right to freedom of expression? ‘Yes please!’
“What about the right to associate? ‘Yes.’
“So if you give them a list, almost nobody would say they don’t want these basic rights. And so I suspect the British Bill of Rights will as near as damnit to the rights in the European Convention and that’s one of the reasons no draft Bill of Rights has ever actually been published, because the public would look at it and say, ’I thought you didn’t like this European Convention…’”
Martin Howe QC
“There is a problem of over-detailed interpretation of the Convention by the Strasbourg court, and the imposition on countries of particular solutions in nuanced situations where there is a considerable degree of room for disagreement on whether or not what has occurred should be passed as a violation of a human right.
“One can give many examples – one very important example is the balance between freedom of expression and the right to a private and family life, for example in the Princess Caroline of Monaco first case, whether or not Princess Caroline should have the right to prevent the publication in newspapers of photographs of her taken on public streets.
“There are other areas, and one which is very important is the issue of prisoner voting, where another problem of the Strasbourg court arises.
“That, I’m afraid, is its endemic disregard of the Convention itself, and of the legal norms which ought to limit its power or provide for a self limitation on its powers.
“When the Convention was negotated, it was discussed as to whether there should be included in the first protocol a provision providing explicitly for an individual’s right to vote. The UK objected to such wording specifically on the grounds that our law did not permit convicted felons to vote. That wording was dropped and the wording of the relevant article simply puts an obligation on states to hold free and fair elections to uphold the will of the people.
”On no basis does it contain any right of particular individuals to vote; despite that, the Strasbourg court in a series of cases has simply invented a right which the states who agreed to the convention never intended should be conferred, and had sought to impose it.
“In these circumstances it is my view is that not only is adherence to a regional mechanism not essential for the protection of human rights, but with this particular convention and the way in which it is operated, it is pernicious to continue to adhere to interpretation of the convention which the Strasbourg Committee seeks to impose upon us.
“I say this with trepidation among a congregation of barristers involved in human rights, but not everyone agrees that lawyers are the best people to undertake the necessary political judgement as to the importance of different rights against each other, or to weigh rights against other things such as the security [of the country against] being attacked by terrorists. In areas where there is nuance, in my view it is essental that our democratically elected officials in Parliament have the last word.”
“There is a whole series of cases, culminating in the Abu Qatada case, concerning the deportation of terrorists. Nobody is advocating sending people back to situations where they are going to be tortured, but the Strasbourg court has progressively expanded the barriers to deportation in terms of many circumstances which go far beyond that.
“In the Abu Qatada case they changed the goalposts by saying, ‘If you are sent to Jordan and then tried on information gained from someone else being tortured, that should be a barrier to deportation.’ The whole approach results in widespread problems in practically dealing with people who are a serious threat to this country in a timely manner.”
“Keir rightly asks, ‘Is it a bad example to other countries if we were to pull out of this machinery?’ I don’t think it is, because the argument that we should suffer the slings and arrows of this outrageous court in order to provide an example for other people is very thin indeed.
“This is a problem of judicial overreach, of abuse of judicial powers. It is an attack on the rule of law by people wearing judicial robes. We can’t end it because we can’t control the court in Strasbourg, but we can stop ourself being subject to it.”
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