The recently sacked Attorney-General, Dominic Grieve, gave a powerful and thoughtful lecture last night at UCL, entitled “Why Human Rights should matter to Conservatives“. The lecture is worth reading in full, and I will not attempt to summarise it here. However, the following passages — which form part of a trenchant critique of the Conservative Party’s proposals to repeal the Human Rights Act and enact a domestic Bill of Rights that would contemplate non-compliance with ECHR obligations — are particularly noteworthy.
On the Conservatives’ proposals in general:
[Their] practical consequences are likely to be as devastating both for ourselves domestically as it will be for the future of the Convention … It is difficult to avoid the conclusion on reading the paper that the real problem for its authors is not so much the interpretation of the Convention by the Strasbourg Court or indeed our own domestic courts but the frustration that an international legal obligation prevents the UK government from being able to ignore judgments when it considers that they are adverse to its view of what is in the public interest. How else can one interpret the suggestion that what are recognised as the “inalienable rights” under Article 3, should be capable of a little alienation in respect of deportation by substituting a new unspecified test for that of “a real risk”, but one apparently nevertheless in line with what is stated as “our commitment to prevent torture and in keeping with the approach taken by other developed nations”?
On the implications of the proposals for devolution:
Domestically, our non-compliance with the Convention calls into question the Devolution settlements for Wales, Scotland and Northern Ireland which enshrine Convention rights as governing all their actions. Parliament at Westminster could, of course, legislate to change the position, but there is evidence that this would be against the will of the devolved administrations. In the case of Northern Ireland, it is also part of the Good Friday Agreement, an international treaty. At a time when the future of the United Kingdom is still in question and the peace settlement in Northern Ireland still fragile, it opens the prospect of a new area of political discord quite apart from the possibility of our courts having to operate different rights systems in one country. For a Unionist party this seems a strange thing to do.
On the EU-related implications of the proposals:
Furthermore adherence to the principles of the Convention is explicit in our membership of the EU. At present the ECJ in Luxembourg is confined to applying the Convention as enshrined in the Charter of Fundamental Rights only to matters within EU competence. But it has been notably expansive in this respect and it has properly been a goal of government policy to try to limit this trend. This was why I argued the case of Chester and MacGeoch myself in the Supreme Court when it was suggested that EU law could be invoked over Prisoner Voting rights. But I can think of nothing more likely to accelerate this trend than claims being brought before the ECJ by persons who consider that they are being denied access to Convention Rights and they can get no redress either domestically or through the Strasbourg Court. The likely consequence will be that the ECJ will expand its jurisprudence to give redress and that the judgments against the United Kingdom will then have direct effect here.
On the implications of the Conservatives’ stance for the ECHR system and international adherence to human-rights standards:
As an international treaty, its success is dependent on the peer group pressure amongst its adherents to promote respect for it and help ensure its judgments get implemented. That is why it is inconceivable that we can negotiate a special status for ourselves within it and why our departure as one of its principal creators and supporters will be so damaging to it. It is already the case that countries such as Russia are using the UK position to try to procrastinate on implementing judgments. Indeed the effect of our conduct will go further as the UK’s ambivalence is being cited by countries such as Venezuela in ignoring obligations under the American Convention on Human Rights arising prior to its denunciation of it in 2012 and citing Britain’s approach as a justification and by the president of Kenya over the jurisdiction of the ICC. It bodes ill for all whose lives have been or could be beneficially affected by the existence of the Convention and the work of the Strasbourg Court and by Human rights conventions generally. It flies in the face of all the good work done internationally by the UK government to promote human rights for so long. I have to say that as a Conservative this pains me. Whatever the challenges the Convention has posed and I accept that there are some proper grounds to criticise its operation, the failure of ambition represented in the Paper and the narrowness of its moral and political vision is very disappointing.