Scrapping the Human Rights Act has become a incredibly hot potato with Theresa May’s recent announcement. Theresa May, a geography graduate from St Hugh’s College at Oxford, announced triumphantly, “We all know the stories about the Human Rights Act, the illegal immigrant who cannot be deported because – I am not making this up – he had a pet cat.”  This unfortunately led David Allen Green, the leading legal blogger, to propose that, “The Home Secretary’s conference speech shows she does not know what her own department is doing”, in an article published yesterday on a blog for the New Statesman.  As Allen Green himself provides, ” it has already been dealt with by respected critical sites such as Full Fact and Tabloid Watch.”

Reviewing the precise value of the Human Rights Act 1998 in the jurisprudence of England and Wales seems to be a worthwhile exercise, irrespective of it having turned into somewhat of a ‘political football‘. For example, parts of the Telegraph, latterly not particularly sympathetic towards David Cameron or Ken Clarke perhaps including Cristina Odone, have supported this ‘attack’ on the Human Rights Act, even proposing that Theresa May is a lioness who could find herself in Number 10. Such jurisprudence issues are extremely complicated, and leading commentators such as Joshua Rozenberg, Britain’s best known legal commentator according to very many, appear to advise that the debate must be conducted in a different light from the political grandstanding (article here). Rozenberg assessed the situation involving our Lord Chancellor as follows, “When Dominic Grieve, the attorney general, was asked at a fringe meeting for his reaction to May’s speech, he insisted he was “completely comfortable” with the idea of replacing the existing legislation with a British bill of rights.” However, Rozenberg says straight-up that there are legal cracks within the foundations of the Conservative part of the Tory-led government, “May is deliberately distancing herself from her coalition colleagues on human rights – including the justice secretary, Ken Clarke, a firm supporter of the Human Rights Act.”  However, only a few weeks ago, the Daily Mail observed nervously that, “The Deputy Prime Minister won his loudest applause with an impassioned defence of the Human Rights Act – insisting it would never be scrapped while he was in government.”

It is within this context the open discussion at the Honourable Society of Inner Temple last night could not have come at a better time. The seminar is jointly hosted by the Constitutional and Administrative Bar Association (ALBA) and the new Bingham Centre for the Rule of Law. The speakers included Lord Justice Laws, Lord Pannick QC and Professor Philip Leach, London Metropolitan author, and author of numerous publications including the book “Taking a case to the European Court of Human Rights“.  The session was totally packed out, and the speakers took many questions from leading practising international barristers and academics.  It is easy to overstate the opposition towards the Human Rights Act, but it was pointed out only two countries are openly questioning the legitimacy  of the European Convention of Human Rights – Russia and the United Kingdom.

LJ Laws has long been in favour of developing domestic jurisprudence in the context of the Human Rights Act and common law. John Laws felt that “the cases were beginning to speak, but the Convention was an useful guidance”, and reaffirmed the influence of a graduated approach to proportionality, an argument which Laws noted had been accepted by Bingham (see for example Regina v. Secretary of State For The Home Department, Ex Parte Daly). Laws reminded the legal audience that we, as a country, have always been in a position to influence Strasbourg, as for example the Pretty v United Kingdom case (a review of this is given here). Laws mooted, however, why should the judges be deciding upon social policy. Considering particularly articles 8-12, Laws provided that often lawyers had to decide where to strike the balance in certain issues between competing interest, but fundamentally lawyers were there to establish the framework and issue – however Laws warned that the nature of this exercise in jurisprudence gives rise ultimately to issue of a philosophical nature.

Lord Pannick charted the history of the reaction to our history right legislation, in relation to Strasbourg. Pannick reminded the audience that criticising the Human Rights Act, in relation to Europe, was not a recent phenomenon. In relation to the Gilbraltar incident, Michael Heseltine – as far back as 1995 – said, “We shall do nothing. We will pursue our right to fight terrorism to protect innocent people where we have jurisdiction, and we will not be swayed or deterred in any way by the ludicrous decisions of the Court.”

According to Lord Pannick, prisoners’ voting rights and the use of hearsay have also produced conflicting opinions from the UK and Strasbourg, and indeed these legal conflicts appear to be ongoing (see for example the present case of Zainab al-Khawaja, where the original argument was heard by the Court in 2010). Lord Pannick proposed that this conflict arose from various sources. Firstly, Lord Pannick felt there is a general resentment of European law amongst Conservative “elements”, and many of the population. Secondly, the objection to the European Convention of Human Rights could part of a wider objection to foreign law. Lord Pannick indeed reminded the audience that a Conservative MP, lawyer and judge, David Maxwell-Ffye, was instrumental in drafting the European Convention of Human Rights. Lord Pannick then identified a possible perception from the UK voting public, that judges should not be deciding on social policy: for example, the argument for prisoner voting is not a matter for judges, but should be a matter for parliament. Fourthly, the European system does not appear to be working well operationally – the strain of its backlog affects the time that can be devoted to cases. Lord Pannick felt that the setting up of the Joint Commission of Human Rights had been a welcome step, particularly for the screening of appropriate human rights cases and appointment of suitably-qualified judges. With the chairmanship of the Council of Europe only meant to last six months, Lord Pannick felt that there was limited damage which could in fact be inflicted by the UK on the jurisprudence of the rest of Europe.

Lord Pannick did not feel fundamentally that the criticisms of the HRA amounted to much. For example, the HRA expressly recognises that the UK Parliament is not bound by the Convention. If Parliament wishes to exclude voting by prisoners, the Human Rights Act does not prevent this. The judges can decide whether the defendants comply, but, according to Lord Pannick, it is equally important that the last word lies with parliament. Lord Pannick instead felt that a much more difficult issue is the relationship between parliament and the Strasbourg Court. Theresa May even if she repealed the HRA would still leave the jurisdiction of the Strasbourg Court intact – our own judges have no effect on the jurisprudence. If the 1998 Act were to be repealed, as parliament is overeign, the number of British cases to Strasbourg would increase according to Lord Pannick. Lord Pannick felt that an useful to look at the relationship between our Supreme Court and Strasbourg would be to look at the ‘control of its docket‘ jurisprudence, in other jurisdictions of international law.

Lord Pannick ultimately felt that the power of our parliament to define power Strasbourg as a body is limited. It would be unprecedented for us to withdraw from the European Convention of Human Rights, incompatible with membership of the EU, or Council of Europe. According to Lord Pannick, the concept of European minimum standards is of vital importance to us. There may be be occasions when national or international considerations are that our judges do not originally recognise that human rights are being breached (e.g. gays in the military) It would be difficult for us to expect that other countries such as Russia should comply with the Convention, if we do not. Lord Pannick therefore felt that the situation now required an accommodation on both sides. The Strasbourg is supposed to overrule a National court only in cases of fundamental significance, where the national supreme court has made an error of principle. If Strasbourg does not follow this principle, it may risk the growth of political opposition. However, likewise, Lord Pannick identified that the Supreme Court should not supinely follow Strasbourg, either. The Government for example accepted the DNA ruling in preference ot the House of Lords. If the Supreme Court were to be asked if the voting rule asked about the prisoners’ voting again, Lord Pannick felt that the Supreme Court would be unlikely to say it is compatible with the European Convention of Human Rights.

Professor Leach discusses in some detail the impact of the Greens, Hirst and Scoppola cases (please keep an eye on the blogs from @carlgardner and @adamwagner1). Professor Leach emphasised Lord Hoffman’s observation that “human rights are universal in abstraction but national in application” , made in his seminal speech entitled, “The Universality of Human Rights” as the Judicial Studies Board Annual Lecture on 19 March 2009.  This was described in the Solicitors Journal on 7 April 2009 as follows,

Lord Hoffmann, one of the most senior law lords, has launched an extraordinary all-out attack on the European Court of Human Rights.

Giving the annual lecture at the Judicial Studies Board, he accused the Strasbourg court of trivialising and discrediting human rights, directly criticised its president, Judge Jean-Paul Costa, and warned that its four-year backlog of cases is growing.

No journalists were present when the speech was made last month, but it was published later on the JSB’s website, a step which could not have been taken without the law lord’s blessing (see: The Universality of Human Rights).

The discussion from the panel and the members of the audience was very thought-provoking, but it was a constructive one representing the genuinely diverse opinions in the community of the Barristers.